THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR 30-DAY FREE TRIAL OF THE SERVICES.
IF YOU PURCHASE OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 31, 2010. It is effective between You and Us as of the date of You accepting this Agreement.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Canterris Technology" means all of Our proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, related documentation, designs and other tangible or intangible technical material or information) made available to You by Canterris in providing the Service.
“Data” or “Content” means any files, images, audio, video, web pages, works, lead or customer data, email marketing campaigns, Service configuration, and any other electronic data or information supplied by You for use with the Service.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a 30-day free trial.
"Services" means the online, Web-based applications and platform provided by Us via http://www.canterris.com and/or other designated websites as described in the User Guide, that are ordered by You as part of a 30-day free trial or under an Order Form, including associated offline components but excluding Third Party Applications.
"Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
"User Guide" means the online user guide and supporting product documentation for the Services, accessible via http://www.canterris.com, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide during the 30-day free trial described in Section 2 (30-Day Free Trial) below.
"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
"We," "Us" or "Our" means the Canterris Inc company described in Sections 17 & 20 (Notices, General).
"You", "Your" or “Customer” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. "Your Data" means all electronic data or information submitted by You to the Purchased Services.
ANY DATA YOU ENTER INTO THE SERVICES DURING YOUR 30-DAY FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU EXPORT SUCH DATA BEFORE THE END OF THE 30-DAY TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE 30-DAY FREE TRIAL TO A PURCHASED SERVICE; THEREFORE, IF YOU PURCHASE A SERVICE, YOU MUST REMOVE YOUR DATA BEFORE THE END OF THE 30-DAY TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 10 (WARRANTY DISCLAIMER), DURING THE 30-DAY FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
4.1 Our Responsibilities. We shall: (i) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Mountain time Friday to 3:00 a.m. Mountain time Monday), or (b) any unavailability or inoperable for various reasons, including equipment malfunctions, interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion; or (c) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations, (iv) shall install, operate and support the hosted environment, including, without limitation, the Canterris Technology, hardware, disk storage, operating systems, management programs, Web server programs, documentation and all other information developed or provided by Us or our suppliers under this Agreement, as well as all other audio and visual information, documents, software, products and services contained or made available to You in the course of using the Service.
4.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement and the Email Marketing Terms of Service, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) be solely responsible for providing, updating, uploading and maintaining the Your Web site and any and all Content, files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through Your Web site, (iv) be responsible for any and all activities that occur under Your names user accounts, (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (vi) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
4.3. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, limits on the number of leads or customer records you can store and manage, limits on bandwidth usage, and, for Services that enable You to delivery email marketing campaigns, limits on the number of email campaign recipients You can send to. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations. You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
5.1. Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.
5.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
5.3. Salesforce.com and Google Services. Service features that interoperate with Salesforce.com or Google services depend on the continuing availability of the Salesforce.com API and Google API's and programs for use with the Services. If Salesforce.com Inc or Google Inc. ceases to make such API or programs available on reasonable terms for the Services, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
6.1. User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 13.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
6.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 10 or more days overdue (or 5 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
6.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
7.1. License of Customer Content. For the term of this Agreement, You grant to Us, and We accept from You, a non-exclusive, worldwide and royalty free license to copy, display, store, use, transmit and display (including on and via the Internet) the Customer Content, solely to the extent necessary to provide the Service as requested by You in accordance with this Agreement.
7.2. License Grant to Customer. We grant You a limited non-exclusive, non-transferable, right to use the Service, solely for Your own internal business purposes subject to the terms of this Agreement. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Service, (ii) modify or make derivative works based upon the Service, including the Canterris Technology; (iii) commercially exploit the Service or supporting materials such as Service documentation in any way, or (iv) create internet "links" to the Service or "frame" or "mirror" the Service on any other server, wireless or Internet-based device. This license is restricted to use by You and does not include the right to use the Service or documentation to process the Content or data of any third parties, or the right to permit any third parties to use the Service or documentation, whether or not such third parties are related to, or affiliated with You. You also agree to be bound by any further restrictions set forth on the Order Form, including, but not limited to, restrictions with respect to number of named users. All rights not expressly granted to You are reserved by Us and Our licensors. There are no implied rights.
7.3. Further Restrictions. Unauthorized use, resale or commercial exploitation of the Service and/or documentation in any way is expressly prohibited. You shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Service or Canterris Technology, or access the Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Service. You shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license to any third-party.
8.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
8.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or Content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
8.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. We shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Content. In the event that You terminate this Agreement (other than by reason of Your breach), We will make available to You the ability for You to access Your Content within 30 days of termination notice if You so request. We reserve the right to withhold, remove and/or discard Your Content without notice for any breach, including, without limitation, Your non-payment. Upon termination for cause, Your right to access or use Your Content immediately ceases, and We shall have no obligation to maintain or forward any of Your Content.
8.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
9.1. Definition of Confidential Information. As used herein, " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
9.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
9.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 9.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
9.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
OUR SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Certain provinces and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above in Sections 10 and 11 may not apply to You.
13.1. Term. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a 30-day free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the 30-day free trial period.
13.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
13.3. Termination without Cause. In the event that You terminate this Agreement (other than by reason of Customer's breach), in writing, prior to the expiration of the then current License Term, You will be required to pay 100% of the total remaining Service fees, in full, for the then current License Term. We will make available to You the ability to access Your Content if You so request at the time notice of termination is given. You agree and acknowledge that We have no obligation to retain Your Content, and may delete Your Content after termination.
13.4. Termination for Cause. Any breach of Your payment obligations or other obligation under this Agreement, unauthorized use of the Canterris Technology or Service will be deemed a material breach of this Agreement. We, in its sole discretion, may terminate Your password, account or use of the Service if You breach or otherwise fail to comply with this Agreement. You agree and acknowledge that You have no obligation to retain Your Content, and will delete such Content, if You have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
13.5. Surviving Provisions. Section 4.3 (Usage Limitations), 6 (Fees and Payment for Purchased Services), 8 (Proprietary Rights), 9 (Confidentiality), 10 (Warrenty Disclaimer), 11 (Limitation of Liability), 13 (Term and Termination), 14 (Representation & Warrenties), 15 (Mutual Indemnification), 17 (Notices) and 20 (General Provisions) shall survive any termination or expiration of this Agreement.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. We represent and warrant that We will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. You represent and warrant that it has not falsely identified itself nor provided any false information to gain access to the Service, that Your billing information is correct, and that You will comply with all of its obligations hereunder. You further represent and warrant to Us that: (i) Your Content and site do not and shall not contain any Content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) You own the Your Content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display Your Content.
We shall indemnify and hold You and Your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with a claim alleging that the Service directly infringes a copyright, a Canadian patent or trademark of a third party; provided that You (i) promptly gives written notice of the claim to Us; (ii) give Us sole control of the defense and settlement of the claim (provided that We may not settle or defend any claim unless it unconditionally releases You of all liability); (iii) provide to Us all available information and assistance; and (iv) have not compromised or settled such claim. We shall have no indemnification obligation, and You shall indemnify Us pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Your products, service, hardware or business process(s).
20.1. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
IF YOU PURCHASE OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 31, 2010. It is effective between You and Us as of the date of You accepting this Agreement.
Table of Contents
- Definitions
- 30-Day Free Trial
- Purchased Services
- Use of the Services
- Third-Party Providers
- Fees and Payment for Purchased Services
- License and Grant Restrictions
- Proprietary Rights
- Confidentiality
- Warranty Disclaimer
- Limitation of Liability
- Additional Rights
- Term and Termination
- Representation & Warranties
- Mutual Indemnification
- Local Laws and Export Control
- Notices
- Modifications to Terms
- Assignment
- General
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Canterris Technology" means all of Our proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, related documentation, designs and other tangible or intangible technical material or information) made available to You by Canterris in providing the Service.
“Data” or “Content” means any files, images, audio, video, web pages, works, lead or customer data, email marketing campaigns, Service configuration, and any other electronic data or information supplied by You for use with the Service.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a 30-day free trial.
"Services" means the online, Web-based applications and platform provided by Us via http://www.canterris.com and/or other designated websites as described in the User Guide, that are ordered by You as part of a 30-day free trial or under an Order Form, including associated offline components but excluding Third Party Applications.
"Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
"User Guide" means the online user guide and supporting product documentation for the Services, accessible via http://www.canterris.com, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide during the 30-day free trial described in Section 2 (30-Day Free Trial) below.
"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
"We," "Us" or "Our" means the Canterris Inc company described in Sections 17 & 20 (Notices, General).
"You", "Your" or “Customer” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. "Your Data" means all electronic data or information submitted by You to the Purchased Services.
2. 30-DAY FREE TRIAL
We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the thirtieth day after Your acceptance of this Agreement or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.ANY DATA YOU ENTER INTO THE SERVICES DURING YOUR 30-DAY FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU EXPORT SUCH DATA BEFORE THE END OF THE 30-DAY TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE 30-DAY FREE TRIAL TO A PURCHASED SERVICE; THEREFORE, IF YOU PURCHASE A SERVICE, YOU MUST REMOVE YOUR DATA BEFORE THE END OF THE 30-DAY TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 10 (WARRANTY DISCLAIMER), DURING THE 30-DAY FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
4. USE OF THE SERVICES
4.1 Our Responsibilities. We shall: (i) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Mountain time Friday to 3:00 a.m. Mountain time Monday), or (b) any unavailability or inoperable for various reasons, including equipment malfunctions, interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion; or (c) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations, (iv) shall install, operate and support the hosted environment, including, without limitation, the Canterris Technology, hardware, disk storage, operating systems, management programs, Web server programs, documentation and all other information developed or provided by Us or our suppliers under this Agreement, as well as all other audio and visual information, documents, software, products and services contained or made available to You in the course of using the Service.
4.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement and the Email Marketing Terms of Service, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) be solely responsible for providing, updating, uploading and maintaining the Your Web site and any and all Content, files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through Your Web site, (iv) be responsible for any and all activities that occur under Your names user accounts, (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (vi) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
4.3. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, limits on the number of leads or customer records you can store and manage, limits on bandwidth usage, and, for Services that enable You to delivery email marketing campaigns, limits on the number of email campaign recipients You can send to. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations. You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
5. THIRD-PARTY PROVIDERS
5.1. Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.
5.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
5.3. Salesforce.com and Google Services. Service features that interoperate with Salesforce.com or Google services depend on the continuing availability of the Salesforce.com API and Google API's and programs for use with the Services. If Salesforce.com Inc or Google Inc. ceases to make such API or programs available on reasonable terms for the Services, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 13.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
6.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 10 or more days overdue (or 5 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
6.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
7. LICENSE AND GRANT RESTRICTIONS
7.1. License of Customer Content. For the term of this Agreement, You grant to Us, and We accept from You, a non-exclusive, worldwide and royalty free license to copy, display, store, use, transmit and display (including on and via the Internet) the Customer Content, solely to the extent necessary to provide the Service as requested by You in accordance with this Agreement.
7.2. License Grant to Customer. We grant You a limited non-exclusive, non-transferable, right to use the Service, solely for Your own internal business purposes subject to the terms of this Agreement. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Service, (ii) modify or make derivative works based upon the Service, including the Canterris Technology; (iii) commercially exploit the Service or supporting materials such as Service documentation in any way, or (iv) create internet "links" to the Service or "frame" or "mirror" the Service on any other server, wireless or Internet-based device. This license is restricted to use by You and does not include the right to use the Service or documentation to process the Content or data of any third parties, or the right to permit any third parties to use the Service or documentation, whether or not such third parties are related to, or affiliated with You. You also agree to be bound by any further restrictions set forth on the Order Form, including, but not limited to, restrictions with respect to number of named users. All rights not expressly granted to You are reserved by Us and Our licensors. There are no implied rights.
7.3. Further Restrictions. Unauthorized use, resale or commercial exploitation of the Service and/or documentation in any way is expressly prohibited. You shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Service or Canterris Technology, or access the Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Service. You shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license to any third-party.
8. PROPRIETARY RIGHTS
8.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
8.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or Content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
8.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. We shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Content. In the event that You terminate this Agreement (other than by reason of Your breach), We will make available to You the ability for You to access Your Content within 30 days of termination notice if You so request. We reserve the right to withhold, remove and/or discard Your Content without notice for any breach, including, without limitation, Your non-payment. Upon termination for cause, Your right to access or use Your Content immediately ceases, and We shall have no obligation to maintain or forward any of Your Content.
8.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
9. CONFIDENTIALITY
9.1. Definition of Confidential Information. As used herein, " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
9.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
9.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 9.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
9.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
10. WARRANTY DISCLAIMER.
WE AND OUR LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT; WE AND OUR LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS; AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY US AND OUR LICENSORS.OUR SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
11. LIMITATION OF LIABILITY.
IN NO EVENT SHALL OUR AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL WE AND/OR OUR LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. ADDITIONAL RIGHTS.
Certain provinces and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above in Sections 10 and 11 may not apply to You.
13. TERM AND TERMINATION
13.1. Term. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a 30-day free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the 30-day free trial period.
13.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
13.3. Termination without Cause. In the event that You terminate this Agreement (other than by reason of Customer's breach), in writing, prior to the expiration of the then current License Term, You will be required to pay 100% of the total remaining Service fees, in full, for the then current License Term. We will make available to You the ability to access Your Content if You so request at the time notice of termination is given. You agree and acknowledge that We have no obligation to retain Your Content, and may delete Your Content after termination.
13.4. Termination for Cause. Any breach of Your payment obligations or other obligation under this Agreement, unauthorized use of the Canterris Technology or Service will be deemed a material breach of this Agreement. We, in its sole discretion, may terminate Your password, account or use of the Service if You breach or otherwise fail to comply with this Agreement. You agree and acknowledge that You have no obligation to retain Your Content, and will delete such Content, if You have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
13.5. Surviving Provisions. Section 4.3 (Usage Limitations), 6 (Fees and Payment for Purchased Services), 8 (Proprietary Rights), 9 (Confidentiality), 10 (Warrenty Disclaimer), 11 (Limitation of Liability), 13 (Term and Termination), 14 (Representation & Warrenties), 15 (Mutual Indemnification), 17 (Notices) and 20 (General Provisions) shall survive any termination or expiration of this Agreement.
14. REPRESENTATION & WARRANTIES.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. We represent and warrant that We will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. You represent and warrant that it has not falsely identified itself nor provided any false information to gain access to the Service, that Your billing information is correct, and that You will comply with all of its obligations hereunder. You further represent and warrant to Us that: (i) Your Content and site do not and shall not contain any Content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) You own the Your Content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display Your Content.15. MUTUAL INDEMNIFICATION.
You shall indemnify and hold Us, our licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of Your Content infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by You of the representations and warranties made herein; or (iii) a claim arising from the breach by You of this Agreement, provided in any such case that We (i) give written notice of the claim promptly to You (ii) give You sole control of the defense and settlement of the claim (provided that You may not settle or defend any claim unless it unconditionally releases Us of all liability and such settlement does not affect Our business or Service); (iii) provides to You all available information and assistance; and (iv) has not compromised or settled such claim.We shall indemnify and hold You and Your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with a claim alleging that the Service directly infringes a copyright, a Canadian patent or trademark of a third party; provided that You (i) promptly gives written notice of the claim to Us; (ii) give Us sole control of the defense and settlement of the claim (provided that We may not settle or defend any claim unless it unconditionally releases You of all liability); (iii) provide to Us all available information and assistance; and (iv) have not compromised or settled such claim. We shall have no indemnification obligation, and You shall indemnify Us pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Your products, service, hardware or business process(s).
16. LOCAL LAWS AND EXPORT CONTROL.
We and our licensors make no representation that the Service is appropriate or available for use in other locations. If You use the Service from outside Canada, You is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Neither use of the Services, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the Canadian or United States Governments for such purposes.17. NOTICES.
We may give notice by means of a general notice on the Service, electronic mail to Your e-mail address on record in Our account information, or by written communication sent by priority mail or pre-paid post to Your address on record in Our account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Us (such notice shall be deemed given when received by Us) at any time by any of the following: letter sent by confirmed facsimile to Us at the following fax number: +1-403-242-4609; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Us at the following address: Suite 215, 1235 - 26 Avenue S.E., Calgary, Alberta, Canada T2G 1R7.18. MODIFICATIONS TO TERMS.
We reserve the right to revise, amend, or modify this Master Subscription Agreement, and any of our other policies and agreements at any time and in any manner. Notice of any revision, amendment, or modification will be posted in accordance with our Terms and Conditions.19. ASSIGNMENT.
This Agreement may not be assigned by You without the prior written approval of Us. Any purported assignment in violation of this section shall be void.20. GENERAL.
This Agreement shall be governed by the laws of Alberta and controlling Canadian federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the provincial and federal courts located in the province of Alberta. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between You and Us as a result of this agreement or use of the Service. The failure of Us to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Us in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between You and Us and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. We may, at our option, issue a press release and/or case study relating to this Agreement and require that You embed the "powered by Canterris Marketing Suite" logo on its Web sites.20.1. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
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