Creative Layer Terms & Conditions
Creative Layer Inc. (“Creative Layer”) provides a Platform as a Service (the “Platform”) offering as described on our website creativelayer.com (“Website”). Access to the Platform is provided on a subscription basis as further described in this Agreement and on the Website under specific subscription plans offered by Creative Layer from time to time. This Agreement applies to anyone (“You”/”Customer”) who subscribes for or otherwise uses the Platform.
THESE TERMS (WHICH TOGETHER WITH THE ORDER FORM ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT”) CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE PLATFORM SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE PLATFORM. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR PLATFORM.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
"Consulting Services" means the professional services provided to Customer by Creative Layer as specified under an Order Form, which may include training services, installation, integration or other consulting services.
“Customer Data” means all electronic data or information submitted by Customer and/or its Users to the Subscribed Service;
“Customer’s Services” means Customer’s online or software as a service offering that incorporates the Subscribed Service.
“DPA” means Creative Layer’s Data Processing Addendum set out at [INSERT URL]
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
“Fee” means the fees specified in the applicable Order Form;
“Subscribed Service” means those parts of our Platform (including without limitation any applications, tools, and platforms) and any ancillary products and services that you have subscribed to under an Order Form;
“Order Form” means the Creative Layer-approved form or online subscription process by which you agree to subscribe to the Subscribed Service and, if applicable, purchase Consulting Subscribed Services. Most Orders are completed through our online payment process or via in-app purchase. The Order may be referred to as a "Statement of Work" if you are purchasing only Consulting Subscribed Services.
“Subscription Period” means an initial subscription period for the Subscribed Service as specified in the applicable Order Form;
“Term” has the meaning ascribed to that term in Section 10.1;
“User” means an individual or entity who is authorized by Customer to use the Subscribed Service for Customer’s benefit, and who has been supplied a user account and password by Customer (or by Creative Layer at Customer’s request) for the Subscribed Service; and
“User Guide” means the online user guide for the Subscribed Service, accessible via the Website, as updated by Creative Layer from time to time.
2. GRANT OF LICENSE.
2.1 Provision of Subscribed Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement including payment of the applicable fees, Creative Layer shall make the Subscribed Service available to Customer during the Subscription Period for use by Customer for use with Customer’s Services. Customer’s right to use the Subscribed Service during the Subscription Period shall be in accordance with any additional conditions, restrictions or parameters specified in the applicable Order Form(s).
2.2 User Accounts. User accounts are for use by 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 Subscribed Service.
2.3 Customer Affiliates. Customer Affiliates may use the Subscribed Service subject to the terms of this Agreement. Customer shall cause each Customer Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by such Customer Affiliate shall be deemed an act or omission of Customer. In addition, each party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.
3. USE OF THE SUBSCRIBED SERVICE.
3.1 Creative Layer Responsibilities. Creative Layer shall: (i) follow good industry practice designed to maintain the security and integrity of the Subscribed Service and the Customer Data; (iii) provide basic support to Customer's Users,; and (iv) use commercially reasonable efforts to make the Subscribed Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which Creative Layer shall endeavor to give at least eight (8) hours notice via the Subscribed Service and which Creative Layer shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. Eastern Time Friday to 3:00 a.m. Eastern Time Monday); or (b) any unavailability caused by circumstances beyond Creative Layer's 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 Creative Layer employees), computer, telecommunications, Internet Subscribed Service Creative Layer or hosting facility failures or delays involving hardware, software or power systems not within Creative Layer’s possession or reasonable control, and denial of Subscribed Service attacks.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur in Customer’s accounts and for Customer’s and its Users’ compliance with this Agreement and the User Guide. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscribed Service, and notify Creative Layer promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Subscribed Service.
3.3 Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Subscribed Service available to any third party other than as part of Customer’s Services; (ii) use the Subscribed Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Subscribed Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Subscribed Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Subscribed Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Subscribed Service or its related systems or networks.
3.4 Publicity. Neither party may issue press releases relating to this Agreement without the other party's prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's standard guidelines.
3.5 Privacy and data protection. The terms of the DPA are hereby incorporated by reference and shall apply to the extent any Customer Data includes Personal Data. The DPA sets out how Creative Layer will process Personal Data on Customer’s behalf in connection with the Subscribed Services provided under this Agreement. Creative Layer will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA.
4. FEES AND PAYMENT.
4.1 Fees. In consideration for the receipt of the Subscribed Service, Customer shall pay Creative Layer the Fees, all as specified in the applicable Order Form. All amounts are payable in the currency specified in the applicable Order Form or, if not so specified, in US Dollars.
4.2 Invoicing and Payment. Fees for the Subscribed Service will be invoiced on a monthly basis unless otherwise specified in the applicable Order Form. Unless otherwise stated in an invoice, charges are to be paid by credit card at the start of each cycle. Customer is responsible for maintaining complete and accurate billing and contact information with Creative Layer.
4.3 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Creative Layer's discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Creative Layer reserves the right to suspend services for overdue accounts.
4.4 Taxes. Unless otherwise stated, Creative Layer's fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and Subscribed Services, harmonized, use or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Creative Layer's net income or property. If Creative Layer has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Creative Layer with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.5 Audit Rights. Creative Layer shall have the right to use the capabilities of the Subscribed Service to confirm the number of Users using the Subscribed Service and Customer’s compliance with this Agreement.
4.6 Suspension of Subscribed Service. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Creative Layer reserves the right to suspend the Subscribed Service provided to Customer, without liability to Customer, until such amounts are paid in full.
5. PROPRIETARY RIGHTS.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Creative Layer reserves all rights, title and interest in and to the Platform and Subscribed Service, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
5.2 Restrictions. Customer shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works (other than the Customer Service) based on the Platform or Subscribed Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other timing or use restrictions that are built into the Platform or Subscribed Service; (c) remove any proprietary notices, labels, or marks from the Platform, Subscribed Service or User Guide; (d) frame or mirror any content forming part of the Subscribed Service; or (e) access the Subscribed Service in order to (i) build a competitive product or Subscribed Service, or (ii) copy any ideas, features, functions or graphics of the Subscribed Service.
5.3 Customer Data. As between Creative Layer and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Customer’s Confidential Information under this Agreement. Creative Layer shall not access Customer's User accounts, including Customer Data, except to respond to Subscribed Service or technical problems or at Customer's request or as necessary for the operation of the Subscribed Service or billing. Customer hereby grants Creative Layer a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to process, store and otherwise use the Customer Data as reasonably required to provide the Subscribed Service. Creative Layer may create aggregated or anonymized analytics and machine learnings arising from Customer’s and its Users’ and end customers’ use of the Subscribed Service and Customer Data processed through the Subscribed Service (“Aggregated Statistics”), which Aggregated Statistics shall not include any underlying Customer Data nor shall it otherwise be capable of referencing back to Customer or its Users. As between Customer and Creative Layer, Creative Layer shall own all rights to such Aggregated Statistics free from encumbrance.
5.4 Suggestions. Creative Layer shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Subscribed Service and/or any other products or Subscribed Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the Subscribed Service.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Subscribed Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with 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.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7. WARRANTIES AND DISCLAIMERS.
7.1 Warranties. Each party warrants that it has the legal power to enter into this Agreement. Creative Layer warrants that (i) it will provide the Subscribed Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Subscribed Service shall perform materially in accordance with the User Guide; and (iii) the Subscribed Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from Customer or a User). Customer warrants that (i) the Customer Data will not contain or transmit to Creative Layer any Malicious Code and that Customer will obtain all necessary consents and make all necessary disclosures to enable it to transmit the Customer Data to the Platform, and (ii) that Customer owns all the rights or has the necessary license to use to the branding provided by Customer for the purpose of use with the Subscribed Service, and that the Customer branding used as intended as contemplated by this Agreement does not and will not infringe any third party rights, including trademarks or copyright.
7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, CREATIVE LAYER MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. MUTUAL INDEMNIFICATION.
8.1 Indemnification by Creative Layer. Subject to the terms and conditions of this Agreement, Creative Layer shall, at its own expense, defend Customer in any action, suit or proceeding by a third party alleging that the Subscribed Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by Creative Layer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by Creative Layer, (i) Customer shall notify Creative Layer promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Creative Layer sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with Creative Layer in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without Creative Layer’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.
8.2 Mitigation. If (a) Creative Layer becomes aware of an actual or potential IP Claim, or (b) Customer provides Creative Layer with notice of an actual or potential IP Claim, Creative Layer may (or in the case of an injunction against Customer, shall), at Creative Layer’s sole option and determination: (I) procure for Customer the right to continue to use the Subscribed Service; or (II) replace or modify the Subscribed Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Subscribed Service and refund to Customer any pre-paid Subscribed Service fees for any periods after the termination of the Subscribed Service, less any outstanding moneys owed by Customer to Creative Layer.
8.3 Exclusions. The obligations in Sections 8.1 and 8.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Subscribed Service furnished by Creative Layer with other products, software or Subscribed Services not provided by Creative Layer; (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Subscribed Service outside the scope of the rights granted in this Agreement.
8.4 Indemnification by Customer. Subject to the terms and conditions of this Agreement, Customer shall, at its own expense, defend Creative Layer, its Affiliates and its and their directors, officers, employees and agents (the “Creative Layer Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Creative Layer Indemnitees alleging that the Customer Data, any branding provided by Customer or Customer's misuse of the Subscribed Service in violation of the terms of this Agreement, infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party (“Customer Claims”) and shall indemnify and hold the Creative Layer Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Creative Layer Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for such defense and indemnification by Customer, (i) Creative Layer shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) Creative Layer shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) Creative Layer shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) Creative Layer shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.
9. LIMITATION OF LIABILITY.
9.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $500,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
9.4 Beneficiaries. Every right, exemption from liability, release, defence, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.
10. TERM AND TERMINATION.
10.1 Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect for the initial term set out in the Order Form (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the term of the Agreement shall be automatically renewed annually for additional one (1) year renewal terms or as otherwise provided for in the applicable Order Form (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”. If this Agreement expires and there are any outstanding Order Forms that have Subscription Periods that extend beyond the effective date of expiration of this Agreement, then this Agreement shall remain in effect in respect to such Order Forms until such Subscription Periods have completed, whereupon this Agreement shall expire (subject to Section 10.4 ( Surviving Provisions)). If this Agreement is terminated for cause by either of the parties then all Order Forms shall terminate at the same time as this Agreement terminates.
10.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Creative Layer shall refund Customer any prepaid fees for any periods after the termination of the Agreement.
10.3 Outstanding Fees. Termination or expiration of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to Creative Layer prior to the effective date of termination or expiration of this Agreement.
10.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 11.
11. GENERAL PROVISIONS.
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
11.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Creative Layer shall be addressed to the attention of the Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
11.8 Venue; Waiver of Jury Trial. The provincial and federal courts located in Ottawa, Ontario, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also 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.
11.9 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet Subscribed Service Creative Layer or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
11.10 Export. Customer acknowledges and agrees that the Subscribed Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Subscribed Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Subscribed Service.
11.11 Entire Agreement. This Agreement, including all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Last Updated: June 23, 2021