FINCHAT TERMS OF SERVICE
These Terms of Use (“Terms”) govern the purchase of the license to the Software, access to Services and use of the Website by the Client and its Users (“you”, “your”, and terms of similar meaning) made available by Stratosphere Technology Inc. (“we”, “us”, “Provider” and terms of similar meaning) and its suppliers. Our Enterprise Terms govern the use of our Enterprise Services for businesses.
By accepting these Terms, by (a) clicking a box indicating acceptance, (b) accepting or executing an Order Form that references these Terms, (c) registering for an account on the Services or Website; or (d) otherwise accessing or using the Services or the Website, you agree to be bound by these Terms, and all terms, policies and guidelines incorporated by reference in these Terms. If a Client registers for a free trial of the Services, the applicable provisions of these Terms will also govern that free trial.
If the individual accepting these Terms is accepting on behalf of a company or legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Terms, in which case the term “Client” or “User” (as the case may be) shall refer to such entity and its affiliates. If the individual accepting these Terms does not have such authority, or does not agree with these Terms, such individual must not accept these Terms and may not use the Services or the Website.
Order Forms are automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Order Form expressly conflict with these Terms, the conflicting provisions of the Order Form control and shall take precedence over the conflicting provisions of the Terms.
1 DEFINITIONS
1.1 “Administrator” means a person or persons assigned by the Client to have the authority to act as the administrator of the subscription on behalf of the Client.
1.2 “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over these Terms or the supply or use of the Services.
1.3 “Client” shall mean the individual or organization who is bound by the terms of the Order Form and these Terms and Conditions.
1.4 “Client Data” means any data or content inputted into the Software by the Client or any of its employees or Users.
1.5 “Cloud Providers” has the meaning given in Section 5.1.
1.6 “Fees” means the fees to be paid by the Client pursuant to the Order Form, these Terms and any applicable Schedules.
1.7 “Order Form” means (i) the FinChat Order Form; or (ii) an online order specifying the Services to be provided hereunder, in each case that is entered into between the Client and the Provider, including any Schedules, addenda and supplements thereto.
1.8 “Personal Information” means any information relating to identifiable individuals, the collection, use or disclosure of which is regulated by Privacy Laws.
1.9 “Privacy Laws” means any applicable federal, provincial and local laws, regulations and rules governing the collection, use and disclosure of information relating to identifiable individuals, including the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection Act (British Columbia), the Personal Information Protection Act (Alberta), and any similar legislation enacted by any province or territory of Canada.
1.10 “Provider Data” means any data or content made available through the Software by the Provider and/or its licensors, including any output generated and returned by the Services.
1.11 “Schedule” means a schedule, which is attached to these Terms, or which may be added hereafter by written agreement of the parties.
1.12 “Services” means the use of the Software, the Professional Services and other related services to be provided by the Provider to the Client pursuant to the Order Form.
1.13 “Software” means the FinChat AI-powered chatbot (including the Provider Data) licensed to the Client and the number of User licenses purchased by the Client pursuant to the terms of the Order Form.
1.14 “Term” shall have the meaning given in Section 11.1.
1.15 “User” means an individual user who (i) is permitted to use the Software; and (ii) agreed to these Terms. Users may include an Administrator, clients, end-users, employees or contractors of the Client who are authorized to use the Services.
1.16 “User Content” means content featured, displayed, communicated or transmitted through the Services, including, without limitation, text, data, articles, images, photographs, graphics, designs, features and other materials that is created or uploaded by Users, which shall at all times exclude Client Data.
1.17 “Website” means the Finchat.io website made available at www.finchat.io or its sub domains or domains with identical names under other top domains and owned by the Provider.
2 PRIVACY AND SECURITY
2.1 Please refer to the privacy policy by clicking here (the “Privacy Policy”) for information on how we or our licensors collect, use and disclose your Personal Information. By using the Services, you agree to the use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.
3 USER ACCOUNTS
3.1 Provisioning and User Accounts. Users can browse the Website without registering for an account. To access the Services, upon agreeing to an Order Form, the Client or the initial Administrator of the Client, as specified in the Order Form, will be permitted to register for a User account. Users must be at least 18 years old, or the minimum age required in their country, to consent to use the Services. If applicable, the initial Administrator may add other Administrators and authorize Users subject to the limitations and additional terms described in the Order Form. The initial Administrator and other Administrators shall be deemed to have the authority to manage (including adding and removing) Users. Administrators may deactivate any User if the Administrator wishes to terminate access to the Service for any User. Access to specific features of the Services may only be available to specific user types.
3.2 Trial. If a Client agrees to a trial of the Services pursuant to an Order Form (the “Trial”), the Provider will make the applicable Services available to the Client on a trial basis until the end of the trial period, if any, set forth in the Order Form (the “Trial Period”). On or before the last day of the Trial Period, the Client may elect to either: (i) terminate the Trial and the Order by written notice to the Provider effective immediately after the end of the Trial Period as set out in the Order; or (ii) continue to access the Services past the expiry of the Trial in accordance with the Order and these Terms. For clarity, after the Trial Period, the Client may only terminate the Order in accordance with Section 7 of these Terms. Any Client Data accumulated during a Trial Period will be permanently lost if the Customer terminates the Order before the end of the Trial Period. Notwithstanding anything to the contrary, during the Trial Period, the Services are provided “as-is” without any warranty, support or service levels and the Company shall have no indemnification obligations nor liability of any type with respect to the Services for the Trial Period unless such exclusion of liability is not enforceable under Applicable Law in which case the Provider’s liability with respect to those Services provided during the Trial shall not exceed $1,000.
3.3 Registration. Upon logging into the Software for the first time, the Administrators and Users will be prompted to register for a User account. Administrators and Users agree to: (a) provide accurate, current and complete information as may be prompted by any registration forms on the Software (“Registration Data”); (b) maintain the security of the their password; (c) maintain and promptly update the Registration Data, and any other information the they provide to the Software, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information provided to Provider. The Client shall be responsible for all activity by Users on the Software, including the activity performed on the Software through the User accounts by an agent, representative, employee (including former employees who maintained access to the Services), or any other person acting on behalf of such User. It is the responsibility of the Client to delete User accounts or otherwise remove access to Users who should no longer be active (e.g. a User who is no longer an employee or an end-user the Client or a Vendor of the Client).
4 LICENSE TO SOFTWARE AND LICENSE RESTRICTIONS
4.1 License to Software. Provider hereby grants to Client and authorized Users a non-exclusive, non-transferable license to use the Software and solely permit the Client and Users to use the functionality contained within the Software for legitimate purposes during the Term.
4.2 License Restrictions. Except as set forth in these Terms, the Order Form, any Schedule and to the extent contrary by Applicable Law: the Client and User may not (a) make or distribute copies of the Software; (b) alter, copy, merge, adapt, reformat, download, or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software through automated or other means to a human-perceivable form, including, without limitation, using the Services in conjunction with, or combining content therefrom with, content obtained through scraping or any other means outside the Services, or any part thereto; (c) sell, rent, share, lease, transfer, distribute, display, host or sublicense the Software (except as is incidental or necessary for the provision of the Software to Users); (d) modify the Software or create derivative works based upon the Software; (e) use the Services in a manner that breaches the rights of any third party, any contract (including these Terms or Third Party Licenses) or legal duty or violate any Applicable Law; (f) copy the Services or any part, feature, function or user interface thereof; (g) access or use the Services in any way for the purposes of competing with the Services or in order to build a competitive product or service; (h) use the Services other than for its intended purposes, including, without limitation, in a manner that, as determined by the Provider in its sole discretion, constitutes excessive or abusive usage; and/or (i) use any automated or programmatic method to extract data or output from the Services, including scraping, web harvesting, or web data extraction.
4.3 Embedded Software Usage. Users are permitted to access and use the Services made available by third-parties via the FinChat embed (the “Embed”) subject to the following conditions: (a) any use of the Services by Users made available through the Embed shall be governed by these Terms; and (b) the Provider shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if the Provider has been advised of the possibility of such damages), resulting from any use by an User of the Services accessed through the Embed.
5 HOSTING AND SUPPORT
5.1 Hosting. The Provider will cause the Software to be hosted on a cloud server maintained by one or more reputable third-party providers (“Cloud Providers”). The Provider will be responsible for contracting with the Cloud Providers, and for paying all fees and charges of the Cloud Providers. All Client Data stored on the Services is located on servers operated by the Cloud Providers in Canada and/or the United States.
5.2 Backups. The Provider will create a backup or cause its Cloud Providers to create a backup of the Software (including all Client Data) no less frequently than once every twenty-four (24) hours. Upon request from the Client, the Provider will provide the Client with a copy of the most recent backup available[TG1] .
6 CLIENT REPRESENTATIONS AND WARRANTIES; CLIENT RESPONSIBILITIES
6.1 Client Representations and Warranties. The Client represents and warrants that (a) the Client’s use of the Services and the use of the Services by the Client’s Users will be consistent with these Terms and any licenses provided and comply with Applicable Law; (b) the Client has the right to enter into these Terms and to allow the Provider to perform the Services. The Client shall be liable for the acts and omissions of any of its Users, directors, officers, employees, contractors, representatives or agents as if such act or omission were an act or omission of the Client.
6.2 Responsibilities. The Client agrees that (a) it shall be responsible for providing and maintaining its own Internet access with the necessary bandwidth speeds as recommended by the Provider and all necessary telecommunications equipment, services, software and other materials (collectively, “Client Equipment”) at the Client’s location(s) necessary for accessing the Services; and (b) the Client is solely responsible for providing, updating, uploading, modifying and maintaining the Client Data.
6.3 Client Indemnity Regarding Use of Services and Client Data. The Client shall be solely responsible for all inputs, selection and use of the Services and all Client Data or other data transmitted, received or created using the Services, even if transmitted, received or created by someone else, including without limitation the Client’s Users, such as User Content, and the Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates harmless from any loss, damage or liability which may result therefrom or from any breach by the Client or its Users of these Terms.
6.4 Acceptable Use of the Services. The Client and its Users may not:
(a) use, or encourage, promote, facilitate or instruct others to use the Services for any illegal, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libelous, menacing, offensive or invasive of another person’s privacy use or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libelous, menacing, offensive or invasive of another person’s privacy;
(b) use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device;
(c) interfere with or disrupt the Services or servers or networks connected to the Services or disobey any requirements, procedures, policies or regulations of networks connected to the Services or misuse the Software by introducing viruses, defects, trojans, worms, logic bombs or other material or item which is technologically harmful or destructive in nature;
(d) attempt to gain unauthorized access to the Software, the server on which the Software is stored, or any server, computer or database connected to the Cloud Provider;
(e) attack the Software via a denial-of-service attack or a distributed or malicious denial-of service attack;
(f) remove any legal, copyright, trademark or other proprietary rights notices contained in the Software, the Provider Data or on materials the Client receives or accesses pursuant to these Terms;
(g) make network connections to any users, hosts, or networks unless the Client has permission to communicate with them;
(h) use the Services for any unlawful or unauthorized purposes;
(i) represent that output generated from the Services was human-generated when it was not;
(j) distribute, publish, send or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising or solicitations (like ‘spam’), including commercial advertising and informational announcements; and/or
(k) use the Services in any way so as to bring the Services, or any part thereof or any third-party related thereto, or the Provider into disrepute.
The Provider reserves the right, but does not assume the obligation, to investigate any violation of this Section or misuse of the Services.
7 FEES, EXPENSES AND PAYMENT
7.1 Fees. In consideration for the Services described herein, the Client shall pay to the Provider the Fees more particularly described in the Order Form and any applicable Schedules. Except as otherwise specified herein or in the Order Form, (i) the Fees are based on the Services purchased and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, (iii) a subscription type or tier (pertaining to certain User quantities) cannot be decreased during the relevant subscription term; (iv) the Client will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan the Client selects when purchasing the Services.
7.2 Free Tier. The Client or any User may not create more than one User Account to benefit from credits provided in any free tier of the Services. If the Provider believes a Client or User is not using the free tier in good faith, the Provider may suspend such Client or User access to the Services.
7.3 Invoices and Payments. The Provider shall invoice the Client, in advance, for the Services in accordance with the terms of the Order Form. The Client shall pay such invoices within five (5) calendar days of receipt (or such other time as specified in the Order Form or any Schedule). If the Client purchases Services with automatic renewals, pursuant to an Order Form, the Client hereby agrees that the Provider will charge the payment method on file on the first day of each billing period for the Services. Taxes shall be identified and shown as separate items on each invoice. Subject to the Order Form or a Schedule, payments shall be made using a pre-authorized third-party payments service provider. The Client agrees to read, accept, and comply with any terms of service of such third-party payment provider selected by the Provider from time to time, at the Provider’s sole discretion. Subject to an Order Form or Schedule, the Client is responsible for providing the Provider and/or Provider’s third-party payments provider with adequate, correct and up-to-date information for any pre- authorized payment information that the Client wishes to be charged at for any Fees pursuant to these Terms, an Order Form, and/or any Schedule. The Client is responsible for: (a) the accuracy of all credit and debit card information or other payment method information that the Client provide to the Provider and/or the Provider’s third party payment provider(s); and (b) maintaining the confidentiality and security of the Client’s account information, including without limitation with respect to payment methods. Late payments are subject to interest in the amount of 1.5% per month on overdue amounts and interest thereon, up to 18% per annum.
7.4 Taxes. All Fees and other amounts payable by the Client under are exclusive of taxes and similar assessments. The Client shall be responsible for all applicable sales, goods and services, harmonized sales, value added, use, excise, other similar taxes, levies and charges not otherwise included in the Fees imposed by applicable tax authorities on the provision of Services hereunder, other than any taxes imposed on the Provider’s income.
7.5 Suspension of Service and Acceleration. If any charge owing by the Client under these Terms or any other agreement is thirty (30) days or more overdue, the Provider may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full.
7.6 Change to Fees. Subject to an Order Form, the Provider reserves the right to introduce new or change any Fees on or related to the Services from time to time, upon providing the Client with thirty (30) days advanced written notice, by e-mailing the Administrator(s) of the Client and/or by posting the updated Fees (or the pertinent calculations) on the Website or displaying a notification in the Software. If the Client does not accept the changed or new Fees, the Client must terminate these Terms or amend its Services prior to the end of the thirty (30) day period. After such period, if the Terms are not terminated or the Services are not amended, the Client’s or any of its Users continued use of the Services after the effective date of the change indicates the Client’s agreement with the new or changed Fees.
7.7 Refund Policy. The Client may cancel its subscription in accordance with Section 11.2(a), and such termination will take effect at the end of the current billing cycle. The Client will continue to have access to the Services from the time the Client terminates its subscription until the start of the next billing cycle and no refunds or credits will be provided for any unused days within the Client’s ongoing billing cycle. Notwithstanding the foregoing, refunds may be available, at the Provider’s sole discretion, for pre-paid annual billing plans if the Client: (a) is not satisfied with the Services; (b) cancels its subscription within thirty (30) days from the Effective Date; (c) submits a refund request to the Provider within thirty (30) days from the Effective Date. Refunds are not applicable if the Client has breached any of these Terms or has utilized the Services beyond the initial Trial Period.
8 INTELLECTUAL PROPERTY, CLIENT DATA AND PRIVACY
8.1 Ownership of the Software. Except for any grant of licenses in these Terms or as otherwise expressly provided in these Terms, the Provider and its licensors, as applicable, shall retain all copyright, patent rights, trade secret rights, trademarks and other proprietary rights or interests (“Intellectual Property Rights”) in the Software. Nothing in these Terms, the Order Form, or any Schedules shall be deemed to convey to the Client or any other party, any ownership right, in or to Software.
8.2 Ownership of Client Data. The Provider acknowledges and agrees that, as between the Parties, the Client is the sole and exclusive owner of the Client Data, and that no right or interest in the Client Data is assigned to the Provider, other than pursuant to Section 8.3 of these Terms, and will be collected, handled and used by the Provider only in compliance with the terms of these Terms.
8.3 License from Client to Provider. The Client hereby grants to the Provider a non-exclusive, royalty-free, non-transferable, limited right to use during the Term, Client Data provided to the Provider solely to perform Services pursuant to these Terms.
8.4 Ownership of User Content. The Provider acknowledges and agrees that, as between the parties, the User is the sole and exclusive owner of the User Content, and that no right or interest in the User Content is assigned to the Provider, other than pursuant to Section 8.5 of these Terms, and will be collected, handled and used by the Provider only in compliance with the terms of these Terms.
8.5 License from User to Provider. The User hereby grants to the Provider a non-exclusive, royalty-free, non-transferable, limited right to use during the Term the User Content provided to the Provider solely to perform Services pursuant to these Terms.
8.6 All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or in the Order Form or a Schedule, all Intellectual Property Rights are expressly reserved by the parties. The Client or the Provider, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by the Provider or the Client, as applicable, from time to time in order to give effect to the provisions of this Article.
8.7 Privacy Laws. The Client and authorized Users represent that (a) they have complied with all applicable Privacy Laws in connection with the collection, use and disclosure of Personal Information, and the provision of Personal Information to the Provider complies with all applicable Privacy Laws; and (b) all individuals to whom such Personal Information relates have consented to the Provider’s collection, use and disclosure of such Personal Information for the purposes disclosed in these Terms or our Privacy Policy.
8.8 Third Party/Open Source Software and Sites. The Software may contain third party software and/or open source software, which may be subject to third party licenses and require notices and/or additional terms and conditions (“Third Party Licenses”). Without limitation, financials and estimates within the Services are provided by S&P Market Intelligence LLC and its suppliers, which shall have exclusive proprietary rights in such data. By accepting these Terms, the Client and its Users are also accepting the Third-Party Licenses, if any, set forth therein. These Third-Party Licenses are made a part of and incorporated into these Terms. To view the Third-Party Licenses, please contact [email protected]. The Software may also contain links to third-party websites (“Third-Party Sites”) and third-party content (“Third-Party Content”). The Client and each User may use such links to Third-Party Sites and any Third-Party Content or service provided there at their own risk. The Provider does not monitor or have any control over, and makes no claim or representation regarding, Third-Party Content or Third-Party Sites. A link to a Third-Party Site or Third-Party Content does not imply the Provider’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. The Provider accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content or Third-Party Sites. When a User leaves the Software, these Terms no longer governs. The Client and each User are responsible for reviewing the applicable terms and policies, including, without limitation, privacy and data gathering practices of any Third-Party Site, and the Client and User should make whatever investigation he/she/it feels necessary or appropriate before proceeding with any transaction with any third party.
8.9 License to Use Feedback. The Client and Users grant the Provider a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Client or Users relating to the operation of the Software or the Services.
9 DISCLAIMER AND LIMITATION OF LIABILITY
9.1 DISCLAIMER. EXCEPT AS SET OUT IN THE ORDER FORM OR THESE TERMS, THE SERVICES ARE PROVIDED TO THE CLIENT AND AUTHORIZED USERS ON AN “AS IS” BASIS, WITHOUT WARRANTIES FROM THE PROVIDER OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, TITLE AND NON-INFRINGEMENT. THE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.
THE PROVIDER IS NOT A TAX ADVISOR, BROKER, FINANCIAL ADVISOR OR INVESTMENT ADVISOR. THE SERVICES ARE NOT INTENDED TO PROVIDE TAX, LEGAL, FINANCIAL OR INVESTMENT ADVICE, AND NOTHING ON THE SERVICES SHOULD BE CONSTRUED AS AN OFFER TO SELL, A SOLICITATION OF AN OFFER TO BUY, OR A RECOMMENDATION FOR ANY SECURITY. YOU ACKNOWLEDGE THAT NO CONTENT PUBLISHED ON THE SERVICES CONSTITUTES A RECOMMENDATION THAT ANY SECURITY, PORTFOLIO OF SECURITIES, TRANSACTION OR INVESTMENT STRATEGY IS SUITABLE FOR ANY SPECIFIC PERSON. YOU FURTHER ACKNOWLEDGE THAT THE PROVIDER IS NOT ADVISING YOU PERSONALLY CONCERNING THE NATURE, POTENTIAL, VALUE OR SUITABILITY OF ANY SECURITY, PORTFOLIO OF SECURITIES, TRANSACTION, INVESTMENT STRATEGY, OR OTHER MATTER. TO THE EXTENT THAT ANY OF THE CONTENT PUBLISHED ON THE SERVICES MAY BE DEEMED TO BE INVESTMENT ADVICE OR RECOMMENDATIONS IN CONNECTION WITH A PARTICULAR SECURITY, SUCH INFORMATION IS IMPERSONAL AND NOT TAILORED TO THE INVESTMENT NEEDS OF ANY SPECIFIC PERSON. YOU UNDERSTAND THAT AN INVESTMENT IN ANY SECURITY IS SUBJECT TO A NUMBER OF RISKS, AND THAT CONTENT RELATED TO ANY SECURITY PUBLISHED ON THE SERVICES WILL NOT CONTAIN A LIST OR DESCRIPTION OF RELEVANT RISK FACTORS.
YOU ACKNOWLEDGE AND AGREE THAT WHEN YOU VIEW INVESTMENT-RELATED CONTENT ON THE SERVICES, YOU ARE DOING SO AT YOUR OWN RISK. THE PURCHASE AND SALE OF ANY SECURITY OR PORTFOLIO OF SECURITIES IS INHERENTLY RISKY AND CAN RESULT IN IMMEDIATE AND SUBSTANTIAL LOSSES OF THE CAPITAL INVESTED. IN ADDITION, YOU UNDERSTAND AND AGREE THAT, WHEN USING ARTIFICIAL INTELLIGENCE TECHNOLOGIES, OUTPUT GENERATED FROM THE SERVICES MAY NOT ALWAYS BE ACCURATE. THEREFORE, YOU MUST EVALUATE ANY OUTPUT FOR ACCURACY FOR YOUR USE CASE AND SHALL NOT RELY ON ANY OUTPUT GENERATED FROM THE SERVICES AS A SUBSTITUTE FOR PROFESSIONAL ADVICE.
9.2 No Indirect, Etc. Damages. Under no circumstances shall the Provider be liable for any claim for (i) indirect, incidental, special or consequential damages, (ii) loss or inaccuracy of data or cost of procurement of substitute goods, services or technology, (iii) compensation for loss of profits, anticipated revenue, savings or goodwill, or (iii) exemplary, aggravated or punitive damages howsoever incurred; in each case under any theory of law or equity, arising out of or in any way related to these Terms or any Services, even if advised of the possibility thereof. The Provider shall not be responsible for any matter beyond its reasonable control.
9.3 Limitation of Aggregate Liability. Except as otherwise specifically provided under these Terms, the liability of the Provider for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from these Terms shall not exceed greater of (a) the Fees paid or payable by the Client to the Provider under these Terms in the six (6) months preceding the Loss; or (b) one hundred dollars ($100).
9.4 Reasonableness of Limitations. The Provider, the Client and Users agree that the limitations contained in this Section 9 are reasonable in scope and form an integral part of these Terms.
10 INDEMNIFICATION
10.1 Indemnity by Client. The Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Provider may incur as a result of or in connection with any third party claim relating to or resulting from (a) any breach by the Client of the Client’s obligations under these Terms, including its obligation to comply with all Applicable Law; or (b) any third party claim that the Provider’s use of any Client Data, infringes, misappropriates or otherwise violates the intellectual property rights of any such party.
10.2 Indemnity by Users. The Users agree to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Provider may incur as a result of or in connection with any third party claim relating to or resulting from any breach by the User of its obligations under these Terms, including its obligation to comply with all Applicable Law.
11 TERM
11.1 Term. The term of these Terms (“Term”) shall commence on the Effective Date or date of acceptance of these Terms set out in the Order Form and will continue for the length of time described in the Order Form as the Initial Term (“Initial Term”). Thereafter, these Terms will automatically renew for successive terms equal to the length of time of the Initial Term (“Renewal Terms”), unless terminated in accordance with these Terms and the Order Form.
11.2 Termination.
(a) Prior to Renewal. Unless otherwise provided in the Order Form, except in the case of a month-to-month term, either party may terminate these Terms by providing written notice to the other party sixty (60) days prior to the end of the then current term. For month-to-month terms, the Client may provide fifteen (15) days prior written notice to terminate these Terms. For greater certainty, such notice may be given prior to the end of such current term, but will only take effect at the end of the then current term.
(b) Breach. Either party may terminate these Terms if the other party materially breaches these Terms, including any failure to make payments when due, and such other party fails to cure such breach in all material respects within thirty (30) days after being given notice of the breach from the non-breaching party.
(c) Insolvency. Either party may terminate these Terms, upon written notice to the other party, if such other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party’s consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy, or if the other party becomes insolvent and cannot pay its debts when they are due.
11.3 Termination and Suspension of Users. Notwithstanding any provision of these Terms, the Provider reserves the right, in its sole discretion, without any notice or liability to the Client or any User, to (a) terminate a User’s license to use the Software, or any portion thereof; (b) block or prevent a User’s future access to and use of all or any portion of the Software; (c) change, suspend, or discontinue any aspect of the Software; and (d) impose limits on the Software.
11.4 Effect of Termination. If these Terms is terminated in accordance with Section 11.2, then:
(a) Each party shall promptly deliver to the other party, all papers, databases, documents, software programs, and other tangible items (including copies) constituting the other party’s Confidential Information in its possession or under its control, or on request, destroy such materials and certify that it has done so;
(b) upon a request by the Client within thirty (30) days of termination, the Provider will within fifteen (15) days of such request, provide to the Client a copy of the Client Data in a format that is readable using commercially available third party software and or the Software, including .csv, .xls and .xlsx formats; and
(c) upon a request by the Client within thirty (30) days of termination, the Provider will delete and cause to be deleted all Client Data from all computer systems owned and controlled by the Provider.
12 CONFIDENTIALITY
12.1 Definition of Confidential Information. “Confidential Information” means all information, documentation, databases, computer software, designs, drawings, pictures or other images (whether still or moving), sounds and content 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. Client’s Confidential Information includes Client Data. The Provider’s Confidential Information includes the Software, the Services and the terms and conditions of these Terms. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was in the lawful possession of or was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) is independently developed by the Receiving Party, which independent development can be shown by written evidence.
12.2 Protection of Confidential Information. The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
12.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, by any court of competent jurisdiction or by any regulatory or administrative body to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.
12.4 Destruction. Each party, upon the request of the other party or within thirty (30) days after termination of these Terms (whichever is earlier), agrees to return and cause its representatives to return, all copies of Confidential Information belonging to or provided by the other party or destroy such copies as directed by that party and certify their destruction.
12.5 Indemnity. Subject to the limitations set forth in Section 9.3, each party agrees to indemnify and hold the other party harmless from and against all loss or damage or any kind and nature suffered by the other party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Section 12.
13 GENERAL
13.1 Governing Law. These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. These Terms shall be treated, in all respects, as an Ontario contract.
13.2 Survival. Any terms and conditions of these Terms which by their nature extend beyond termination of these Terms shall survive such termination. This includes, without limitation Section 8 (Intellectual Property, Client Data and Privacy) (but not section 8.3 (License from Client to Provider)), Section 9 (Disclaimer and Limitation of Liability), Section 10 (Indemnification), Section 11.4 (Effect of Termination), Section 12 (Confidentiality) and applicable provisions of Section 13 (General).
13.3 Dispute Resolution.
(a) This Section 13.3 sets out the process (the “Dispute Resolution Process”) for resolving all disputes, issues, controversies, and/or claims arising out of or in connection with these Terms, or in respect of any legal relationship associated with or derived from these Terms (“Disputes”).
(b) Either party may initiate the Dispute Resolution Process by sending a notice of a Dispute (a “Dispute Notice”) to the other party. Upon delivery of a Dispute Notice to either party, each party shall appoint a knowledgeable, responsible, non-lawyer, management representative to meet and negotiate in good faith with the representative of the other party in order to resolve the Dispute.
(c) All Disputes that are not resolved within thirty (30) days following delivery of a Dispute Notice shall be arbitrated and finally resolved, with no right of appeal, even on questions of law, pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be Toronto, Ontario, Canada. The language of the arbitration shall be English.
(d) Notwithstanding anything contained in the Agreement to the contrary, either party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction whenever the facts or circumstances would permit a party to seek such relief.
13.4 Relationship. The relationship between the Client and the Provider will at all times be one of independent contractor and nothing herein shall be construed as implying an employment, partnership, or joint venture relationship. The Provider is not an employee of the Client and is not entitled to any benefits that the Client may provide to its employees. Nothing herein shall be construed as empowering either party to act as a representative or agent of the other party. Neither party shall have the authority to enter into any contract, nor to assume any liability, on behalf of the other party, nor to bind or commit the other party in any manner, except as expressly provided in these Terms.
13.5 Force Majeure. Except as expressly provided otherwise in these Terms, dates and times by which the Client or the Provider is required to perform under these Terms, the Order Form, or a Schedule (except for any payment obligation) will be postponed automatically to the extent and for the period of time that the Client or the Provider, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a party). The following events are deemed to be outside of a party’s reasonable control: acts of God, acts of government, acts of war, civil or military unrest, acts of public enemies, epidemics, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the fact and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonably foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis. The parties agree that an event shall not be considered to beyond reasonable control if a reasonable business person applying due diligence in the same or similar circumstances under the same or similar obligations as the provisions of the Order Form or Schedule would have put in place contingency plans to either materially mitigate or negate the effects of such event. A party seeking to rely on this Section must (i) notify the other party immediately and in detail of the anticipated or actual commencement of and the cause of postponement; (ii) notify the other party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and (iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available.
13.6 Currency. Unless otherwise specified in the Order Form, all references to amounts of money in these Terms refer to United States (USD) currency.
13.7 Notices. Notices that we give to you (other than notice of amendment of these Terms), may be provided in any of the following ways. First, we may email the Administrator(s) at the contact information provided in the Order Form or any registration data. Second, we may post a notice on the Provider’s website. It is your responsibility to periodically review the Provider’s website for notices. The Client may provide notice to the Provider by (a) submitting a ticket through the helpdesk; or (b) e-mailing the Provider.
13.8 Successors and Assigns. These Terms shall enure to the benefit of, and be binding on, the parties and their respective successors and permitted assigns. The Provider may assign these Terms, in its sole discretion.
13.9 Severability. Any provision of these Terms which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of these Terms, all without affecting the remaining provisions of these Terms or affecting the validity or enforceability of such provision in any other jurisdiction.
13.10 Entire Agreement. These Terms, the Order Form and the Schedules constitute the entire agreement between the parties with respect to the subject matter of these Terms and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.
13.11 Waiver. No term or provision of these Terms is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
13.12 Fully Negotiated Agreement. The Client and the Provider acknowledge and agree that all of the provisions of these Terms have been fully negotiated, that neither of them shall be deemed the drafter of these Terms and that, in construing these Terms in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favour of one party on the ground that such provision was drafted by the other party.
13.13 Language. The parties have required that these Terms and all deeds, documents and notices relating to these Terms be drawn up in the English language. Les parties aux présentes ont exigé que le présent contrat et tous autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.
13.14 Modification of Terms. The Provider may modify these Terms at any time by (a) posting a notice on the Provider’s website or on the Software; or (b) by e-mailing the Administrator(s) of the Client. The Provider will also update the “Last Updated” date at the top of the Agreement. You are responsible for checking the Agreement whenever you access or use the Services. By continuing to access or use the Services, you are indicating that you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you must stop accessing and using the Services.
13.15 Questions. If you have any questions regarding these Terms or your use of the Services, please contact us here:
Stratosphere Technology Inc.