Effective April 1st 2013 – Terms and Conditions
By using our Website and Services, you, ‘the Customer’, confirm that you accept these Terms and that you agree to abide and be bound by them. YOU MAY NOT USE THE WEBSITE AND SERVICE UNLESS YOU AGREE TO BE BOUND BY THESE TERMS.
WHEREAS, The Provider provides a collection of applications and tools for managing email services which it has agreed to make available to the Customer on the Terms of this Agreement.
THEREFORE, The Provider and the Customer, intending to be legally bound, agree as follows:
1. Definitions and interpretation
1.1 In this Agreement the following terms shall have the following meanings:
“Associated Company” means a company belonging to the same group as either party.
“Agreement” means this Agreement for the Provision of Email Management Services, which consists of the Order Confirmation and these Terms and Conditions.
“The Provider” means Bubblebox Holdings, Inc., (dba bubblebox:media) whose registered office is located at #1500-885 West Georgia Street, Vancouver, BC, V6C 3E8, Canada.
“Commencement Date” has the meaning set out on the Order Confirmation.
“Customer” means the person, firm or company whose details are set out on the Order Confirmation.
“Environment” means the software applications to be utilized in delivering the Services.
“Further Services” means any custom goods, services or advice to be provided by The Provider to the Customer (if any) as detailed in the Order Confirmation as amended from time to time.
“Intellectual Property Rights” means any and all patents, patent applications, know-how, trade marks, trade mark applications, trade names, registered designs, copyright, database rights or other similar intellectual property rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future, that are owned by The Provider, or its Associated Companies.
“Materials” means written documentation and content, verbal, electronic and other information, databases, computer software, Software, designs, drawings,
pictures or other images (whether still or moving), the Website, sounds or any other record of any information in any form belonging to The Provider but
for the avoidance of doubt does not include material belonging to the Customer.
“Minimum Period” means the period specified as such in the Order Confirmation.
“Modifications” means any transition, migration, alteration, amendment or upgrade to the Environment.
“Modified Terms” means those terms in the Order Confirmation that have been modified, added or removed by the parties hereto.
“Order Confirmation Form” or “Order Confirmation” means the order form confirming, in part, the level of Services the Customer is agreeing to purchase, and makes up part of the Agreement.
“Password” means the password issued to the Customer by The Provider to enable the Customer to access the Customer’s management Account via The Provider Website.
“Personal Data” means data about living people who can be identified from the data, or from combinations of the data and other information which the person in control of the data has, or is likely to have in future.
“Services” means any goods, services or advice, including where applicable the Further Services, to be provided by The Provider to the Customer as detailed
in the Order Confirmation, as amended from time to time.
“Charges” means the fee to be paid by the Customer to The Provider as detailed in the Order Confirmation, as amended from time to time.
“Terms” means Terms and Conditions of this Agreement.
“Trade Mark” means the ‘BUBBLEBOX™’ registered trade mark and logo and any future registration of either of these marks or any similar mark or branding of BUBBLEBOX™ or of any Associated Companies or third parties provided or Used as a part of these Services or any application for registration anywhere in the World.
“Third Party Lists” means any list used for an emailing where the subscribers to that list have opted-in to receive emails from a company or brand that is
not the company or brand for whom the emailing is being sent.
“Use” means direct use of the Services for email marketing, as a survey tool, as a microsite builder, as a reporting tool and such other use as may be, in accordance with the Services.
“Website” the web site owned and hosted by The Provider at www.bubbleboxmailer.com
2. Grant of right to use the Services and Documentation
2.1 Subject to and in accordance with this Agreement and in consideration of the payment of the Charges by the Customer to The Provider, The Provider hereby licenses the Customer the right to use the Services and agrees to provide the Further Services to the Customer, in each case on the terms and conditions of this Agreement.
2.2 The Customer shall pay the Charges for the Services in accordance with these Terms, with all terms set out in the Order Confirmation or in accordance with any other payment terms agreed to in writing with The Provider. Payment shall be made in the currency set out in the Order Confirmation.
2.3 The Provider may alter the level of Charges or the payment terms from time to time upon not less than 30 days’ notice to the Customer. Within 14 days of receiving such notice, the Customer may notify The Provider in writing that it wishes to terminate the Agreement with effect from the date of any proposed change in the Charges. The Provider may then either (i) terminate the Agreement or (ii) withdraw its notice of the proposed changes to the Charges and/or the payment terms. In the case of (i) and provided the Charges are increased by 10% or more, the Customer shall only be responsible to pay for those Services and Further Services actually received to the date of termination. In all other cases of (i), the full amount due for the whole of the Minimum Period shall be due and payable immediately upon termination. In the case of (ii), the Agreement will not terminate as a result of the Customer’s notice. If no such notice is received from the Customer, then the Customer shall be deemed to have accepted the changes proposed by The Provider.
2.4 All Charges quoted to the Customer for the provision of the Services are exclusive of any applicable sales taxes, for which the Customer shall be additionally liable at the applicable rate from time to time.
2.5 Upon the Customer signing the Order Confirmation, the Customer agrees to provide The Provider with a valid email address and Credit Card information to be stored on file. The Provider reserves the right to refuse credit cards from select issuers. Payment of the Charges as set out in the Order Confirmation shall be made by credit card by the Customer to The Provider. If the credit card expires, the billing address associated to the credit card changes, or the credit card is cancelled and replaced owing to loss or theft, The Customer must advise The Provider immediately via telephone and in writing. At its sole discretion confirmed in writing, The Provider reserves the right to accept payment of Charges by cheque or bank transfer. Notification of invoices will be sent to the Customer via the email address on file with The Provider.
2.6 Subject to any separate agreement in writing between the parties from time to time, the Charges and any additional Charges payable shall be paid by the
Customer (together with any applicable sales taxes, and without any set off or other deduction) to The Provider within the number of days specified in the
Order Confirmation from the date of each Invoice. Time for payment is of the essence.
2.7 No payment shall be deemed to have been made until The Provider has received such payment in cleared funds from the Customer.
2.8 If the Customer fails to pay The Provider any Charges due pursuant to this Agreement, then The Provider shall be entitled to charge interest (both before and after any judgement) on the outstanding amount at the rate of 2% per month (24% per annum), accruing on a daily basis, from the due date until the outstanding amount is paid in full.
2.9 If the Customer fails to pay any Charges due within the number of days set out in clause 2.6 (subject to any separate agreement in writing between the parties from time to time), The Provider shall notify the Customer but reserves the right to immediately disable the account and temporarily suspend the provision of the Services to the Customer until such time as any outstanding amount owed further to the Charges has been settled in full in cleared funds, whereupon the Services will be reinstated.
2.10 The Customer may not withhold payment of any amount due to The Provider because of any set-off, counter-claim, abatement, or other similar deduction.
2.11 The Provider reserves the right to carry out credit checks on the Customer without notice from time to time, and to provide a restricted Service limiting the send volumes of emails based on the results of such credit checks. The Provider also reserves the right to apply a limit on Charges incurred by the Customer or to request payments of Charges in advance during the provision of the Services if a Customer’s credit rating reduces. Such limits will be notified to the Customer in writing and shall continue until such time as The Provider may elect at its sole discretion.
3. Duration and Termination
3.1 This Agreement shall on the Commencement Date and, subject to Sections 3.4 and 3.5, shall remain in force for the Minimum Period, and thereafter until
terminated, whether by mutual agreement or otherwise.
3.2 After the Minimum Period, either party may terminate this Agreement by giving 60 days written notice to the other party.
3.3 The Provider may terminate this Agreement upon written notice in the event that The Provider becomes aware that the Customer is abusing the Services or Further Services. Such abuse shall include (without limitation) sending out unauthorized or unsolicited advertising, junk or bulk emails, or emails being sent that result unacceptably high spam rates, or otherwise unsolicited or unauthorized emails or violations of Customer’s Responsibility for Content as set forth in Section 7.
3.4 A party hereto may terminate the Agreement on giving written notice if:(a) the other party commits any material breach of the Agreement and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice so to do; or (b) the other party becomes insolvent or bankrupt, enters into an arrangement with creditors, has a receiver or administrator appointed or its directors or shareholders pass a resolution to suspend trading, wind up or dissolve that party other than for the purposes of amalgamation or reconstruction or it ceases, or threatens to cease, trading.
3.5 On termination for whatever reason and without prejudice to any other rights or remedies which The Provider may have, The Provider may change the Password without informing the Customer, but The Provider will provide a copy of the Customer’s data to the Customer.
3.6 Immediately on the termination of this Agreement for whatever reason, the Customer shall pay to The Provider, without right of set-off, counterclaim or holdback, the full remaining amount of the Charges, including without limitation any unpaid amount of the Total Cost (as that term is found at Part 2 of the Order Confirmation) and all amounts owed for the Further Services, which amounts are hereby acknowledged by the Customer as fully earned by, and payable to, The Provider.
3.7 The Provider may immediately and without notice suspend the provision of Services and Further Services in accordance with the provisions of clause 2.9, 4.4, 4.5, 4.6, 4.7, 4.8, 7.1, 7.2, 7.3 or 7.4 within this Agreement.
3.8 The Provider may immediately and without notice suspend the provision of Services to the Customer if the Customer’s account remains inactive for a period of 13 months or more.
3.9 Any termination of the Agreement for any reason shall be without prejudice to any other rights or remedies The Provider may be entitled to at law or under this Agreement and shall not affect the coming into force or the continuance in force of any provision of the Agreement which is expressly or by implication intended to come into or continue in force on or after such termination including but not limited to the warranties and indemnities contained in these Terms.
3.10 The period during which The Provider may suspend the Services in accordance with the Agreement will continue until the circumstances giving rise to The Provider’s right to suspend the Services ceases to exist or until the Agreement is terminated hereunder.
3.11 In the event that The Provider suspends or terminates the provision of Services to the Customer under clauses 3.7, the Customer will continue to be obliged to pay all Charges, including without limitation those accruing during the period of the suspended Services.
3.12 Where the provision of Services to the Customer has been suspended The Provider reserves the right to charge the Customer a $50.00 (fifty dollars) administration fee for reconnection or any resumption of the provision of the Services.
4. Customer’s Obligations
4.1 The Customer shall, at its own expense, provide all documents or other materials and data or other information necessary for the use by the Customer of the Services and where appropriate for the provision of the Further Services by The Provider.
4.2 The Customer shall, at its own expense, retain duplicate copies of all documents or other material and data or other information provided to The Provider and shall insure against its accidental loss or damage. The Provider shall have no liability for any such loss or damage, howsoever caused. The Provider has no responsibility or liability for the storage or back up of customer data and although back-ups shall be carried out at regular intervals, the Customer shall remain entirely responsible for making its own back-up of such data if required, particularly but not limited to when the Customer adds a significant amount of data over a short time period. The Provider shall incur no direct or indirect liability to the Customer for any loss or damage, however caused, arising from any loss of data arising under this clause 4.2.
4.3 Where lists used by the Customer for any emails sent from a The Provider account on its own behalf are Third Party Lists, the Customer shall:
4.3.1 inform The Provider that such a list is being emailed and provide The Provider with full details of the origin of the list by email to
email@example.com prior to sending the emailing; and
4.3.2 ensure that the following statement (or similar statement where a variation in wording has been agreed between the Customer and The Provider prior to the sending of the emailing) appears prominently at the top of the email being sent: “You are receiving this email because you registered your details with [name the original list subscribed to and the owners/branding of that list]. If you wish to unsubscribe from future emails, please click here.”
4.4 The Customer shall not: (a) use the Services in any way so as to bring the Services or The Provider into disrepute; (b) use the Services to send unsolicited or unauthorised advertising, promotional material, ‘junk mail’, ‘spam’, ‘chain’ letters or pyramid schemes, offensive adult services, pornographic material, pornographic images, communications promoting email address data lists or any other form of solicitation to any data subjects or third party; (c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or materials transmitted through the Services; d) use the Services in a manner which is unlawful, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libellous, menacing or invasive of another persons privacy; (e) use the Services in a manner which infringes the Intellectual Property, proprietary or personal rights of any third party, including data subjects; (f) misuse the Website by introducing viruses, trojans, worms, logic bombs or other material which is technologically harmful; (g) attempt to gain unauthorised access to the Website or Services, the server on which the Website or Services are stored or any server, computer or database connected to the Website or Services; or (h) attack the Website or Services via a denial-of-service attack or a distributed or malicious denial-of service attack.
4.5 The Provider monitors the content of emails created by the Customer and may at its discretion immediately and without notice to the Customer suspend
the Service if it considers in its reasonable opinion that the Customer is in breach of clause 4.4 and no refund of the Charges to the Customer will be
made. The Provider accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 4.5.
4.6 For avoidance of doubt it is an express condition of these Terms that the Customer will not use the Services to send email communications advertising or promoting email lists or services supporting unsolicited bulk email. Any Customer who uses the Services to promote or advertise email lists or services supporting unsolicited bulk email will have their account disabled without notice and with immediate effect and The Provider will not be required to make any refund of Charges or other payments received. Unsolicited bulk email support services may include but are not limited to: services providing service to known spam operations listed on Register of Known Spam Operations (ROKSO), services providing ‘bullet-proof hosting’ for spam service purposes, services obfuscating or anonymising spam senders, services selling or providing hosting for the sales or distribution of spamware or address lists, and networks knowingly hosting spammers as either stated or de facto policy. The Provider accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 4.6.
4.7 In the event of a breach by the Customer of applicable legislation, regulations, directions, Codes, codes of practice, best practice guides and other rules and guidelines The Provider will review the circumstances leading to the breach and may in its absolute discretion (taking account of the Customer’s track record of Use of the Services) either terminate the provision of Services or reactivate the Services subject to the Customer providing documentary evidence that the breach was caused inadvertently and while acting in good faith and that appropriate steps have been taken to prevent any further reoccurrences. The Provider accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 4.7.
4.8 The Customer will keep its password and other access details for Use with the Services confidential and restricted to those members of staff who need to know such details and shall ensure all such staff are aware of the confidential nature of such information and treat it accordingly. The Customer shall notify The Provider immediately if it believes that such information is no longer secret. The Customer is solely responsible for all activities that occur under the Customer’s password or account. The Customer will not permit any person to access the Services for any unauthorised purpose that would constitute a breach of these Terms if such a breach was carried out by the Customer.
4.9 The Customer shall reimburse, defend, indemnify and save harmless, The Provider, its employees, directors, agents, successors and assigns, from any and all claims, actions, proceedings, judgements, orders, damages, liabilities, losses, expenses and costs (including without limitation all legal fees on a solicitor-and-his-own-client basis) arising out of or in any way related to, resulting from, caused by or contributed to by the Customer’s errors or acts, or its failure to observe or perform its obligations under, or in connection with, this Agreement, including without limitation, failure to make prompt payment for the Charges.
5. The Provider’s Obligations
5.1 The Provider will take all commercially reasonable steps to ensure that the Services and where appropriate the Further Services are completed in accordance with any timetables or other targets agreed in this Agreement, as amended from time to time.
5.2 The Provider will provide the Services as defined on the Order Confirmation which when accessed and executed by the Customer will enable the Customer to be in compliance with United States CAN-SPAM laws and the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA) or any other applicable privacy laws.
5.3 The Provider shall provide the Services to the Customer for the duration of and in accordance with the Agreement. The Agreement shall come into force and govern the provision of the Services by The Provider and the Use of the Services by the Customer from the Commencement Date set out on the Order Confirmation signed by the Customer until terminated in accordance with this Agreement.
5.4 The Provider uses third parties based in the EEA to host The Provider application servers for the provision of the Services. The Provider will use its reasonable endeavours to ensure that any such third party undertakes to provide its services to standards regarding confidentiality and data protection that are no less equal to those contained in the Agreement.
5.5 The Provider does not warrant that the Services will be uninterrupted, error, bug or virus free or that the delivery of emails will be without delay. The Provider accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 5.5.
5.6 It may be necessary for The Provider to temporarily suspend the Services in whole or in part from time to time to carry out maintenance of the Services. The Provider will use its reasonable endeavours to provide the Customer with at least 48 hours notice of temporary suspensions of the Services. However The Provider reserves the right to carry out urgent maintenance or repair work at any time. Services may also be suspended in whole or in part where The Provider or any third party host is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority or an emergency service organisation. The Provider accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 5.6.
5.8 Where the Website contains links to other sites and resources provided by third parties, these links are provided for the Customer’s information only. The Provider has no control over the availability or content of such other sites or resources, and accepts no responsibility or liability for them or for any loss or damage that may arise from the Customer’s use of third party sites or Materials. The Provider accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 5.8.
5.9 Whilst The Provider will use its reasonable endeavours to do so, it cannot guarantee the delivery of emails to any recipient under the Services as it is dependent upon accurate and up to date email addresses, upon suitable internet availability and connectivity, on various anti spam and junk mail policies adopted by recipient email service providers as well as restrictions regarding the content, wording and graphics of an email. The Provider will use reasonable endeavours to assist the Customer with methods to maximise the delivery rate of emails, however The Provider makes no representations or warranties whatsoever about the speed or number of emails sent that will be delivered to recipients. The Provider accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 5.9.
6. Delivery of Services
6.1 The Provider has the sole authority to determine and deploy the appropriate Environment. The Provider reserves the right, at its sole discretion, to make the Modifications at any time during the term of this Agreement. In the event The Provider exercises its right to make the Modifications, it shall inform the Customer in writing no less than 30 days prior to any such changes and the Customer shall be entitled any additional training reasonably requested, at no cost to same.
7. Responsibility for Content
7.1 The Customer shall be responsible for the content of all documents or other materials provided to The Provider in the course of this Agreement.
7.2 The Customer understands that The Provider does not exercise or accept any editorial control over the content of materials (including but not limited to emails and attachments to emails) sent to third parties in the course of the Customer’s use of the Services and where appropriate in the provision of the Further Services and therefore the Customer shall be responsible for:
7.2.1 ensuring that any material (including but not limited to emails and attachments to emails) distributed by the Customer in the course of the Customer’s use of the Services or distributed in the course of The Provider providing the Further Services is not improper, offensive, obscene, pornographic, defamatory or otherwise illegal or reasonably capable of being interpreted as immoral or unethical;
7.2.2 checking the accuracy and reliability of any material (including but not limited to emails and attachments to emails) distributed by the Customer in
the course of the Customer’s use of the Services or distributed in the course of The Provider providing any Further Services;
7.2.3 ensuring that any material (including but not limited to emails and attachments to emails) distributed by the Customer in the course of the Customer’s use of the Services or distributed in the course of The Provider providing any Further Services complies fully with any and all applicable laws, including without limitation the CAN-SPAM Act and the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA) or any other applicable privacy laws.
7.3 The Provider reserves the right to prevent the delivery of or not to send out materials (including but not limited to emails and attachments to emails) to third parties once notified of an actual or potential claim relating to the content of the materials.
7.4 Without prejudice to its other rights in this Agreement, The Provider reserves the right to immediately remove any item included in any emails forming part of the Services or any other item or material made available via the Services by the Customer at any time and without notice, where the content is in The Provider’s reasonable opinion a breach of the Agreement. The Provider accepts no responsibility or liability to the Customer for any direct or indirect loss or damage that may arise under this clause 7.4.
8. Data Protection
8.1 Each party agrees that in relation to this Agreement it will at all times comply with all applicable laws and generally accepted industry standards in relation to obtaining, storing and processing Personal Data and will not cause the other to breach any such laws or standards.
8.2 Both parties hereby acknowledge that performance of a duty imposed by any applicable law shall not constitute a breach of any obligation in respect of confidentiality which it may owe to the other party.
8.3 The Customer warrants and undertakes to The Provider that:
8.3.2 without limiting the generality of Section 8.1, any and all Personal Data provided by the Customer for use by The Provider in relation to the Services has been fairly obtained and the Customer has obtained (or will obtain prior to providing the Personal Data to The Provider) all necessary consents, authorizations or other permissions necessary to enable The Provider to process the Personal Data in compliance with all applicable laws and generally accepted industry standards in the context of the Services to be supplied under this Agreement;
8.4 Subject to Section 10.1.4, each party shall indemnify and hold harmless the other party against any and all costs, losses, damages or other expenses incurred as a result of the other party’s breach of the warranties and undertakings given in this Section 8.
9.1 The Provider warrants to the Customer that it will use commercially reasonable care and skill in making the Services available and in providing any Further Services.
9.2 EXCEPT AS EXPRESSLY STATED IN THIS SECTION 9, THE SERVICES AND THE FURTHER SERVICES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. Without limitation, The Provider does not give any warranties (whether implied or otherwise) that using the Services and the Further Services will materially increase the Customer’s business.
10. Limitation of Liability
10.1 The Customer warrants that it has chosen to make use of the Services and to request any Further Services in the light of the Customer’s own knowledge as to the Customer’s particular needs and requirements.
10.1.1 The Provider shall have no liability whatsoever to the Customer for any delay, loss, damage, costs, expenses or other claims for compensation
arising from any information or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the
wrong form, or arising from their late arrival or non arrival, or any other fault of the Customer;
10.1.2 The Provider shall have no liability whatsoever to the Customer for any loss, damage, costs, expenses or other claims for compensation arising from the Customer making use of the Services or the Further Services for any purpose not clearly disclosed to The Provider or from the Customer allowing a third party to make use of the Services or the Further Services;
10.1.3 The Provider SHALL NOT BE LIABLE FOR ANY LOSS OF PROFIT OR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS, DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS
(WHETHER CAUSED BY THE NEGLIGENCE OF The Provider, ITS EMPLOYEES OR AGENTS OR OTHERWISE) WHICH ARISES OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE
SERVICES OR THE FURTHER SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS AND
EXCLUSIONS OF LIABILITY AND WARRANTY IN THESE TERMS AND CONDITIONS ARE FAIR AND REASONABLE. Some states/provinces/territories may provide legal rights that
differ from the foregoing.
10.1.4 Without limitation to Sections 10.1.1 and 10.1.2, the total liability of The Provider under or in connection with this Agreement or the Services or the Further Services shall not exceed the total of the sums paid by the Customer to The Provider during the 3 months prior to notification of the claim.
10.2 The Provider shall not be liable to the Customer or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of The Provider’s obligations in relation to the Services or the Further Services, if the delay or failure was due to any cause beyond The Provider’s reasonable control.
10.3 Without limitation to Section 10.2 above, The Provider shall take commercially reasonable steps to continue to provide or to resume providing the Service and any Further Service as agreed in the event that there is a delay or other interruption in the Service or Further Service.
11. Intellectual Property
11.1 Unless agreed otherwise in writing between the Customer and The Provider:
11.1.1 The Customer shall retain ownership of all Intellectual Property Rights of whatever nature in the documents or other material and data or other information provided to The Provider in the context of this Agreement. For the avoidance of doubt, the Customer shall not be deemed to have granted The Provider any license to use the documents or other material and data or other information other than for the purposes of this Agreement.
11.1.2 The Provider shall retain ownership of all Intellectual Property Rights of whatever nature in all documents or other material and data or other information and devices or processes used or provided by The Provider or created by The Provider in making the Services available and in providing the Further Services.
11.2 The parties warrant to each other that no documents or other material and data or other information and devices or processes will be provided by one party to the other party which infringe any third party Intellectual Property Rights.
11.3 In the event that a claim for the infringement of third party Intellectual Property Rights is threatened or made against a receiving party (the “Receiving Party”) in relation to documents or other material, data and other information or devices and processes provided to the Receiving Party by the other party for use in the context of this Agreement or which the other party dictated should be used by the Receiving Party in the context of this Agreement, the other party shall indemnify and hold harmless the Receiving Party and its officers, directors, employees and agents against any and all losses, damages, costs and other expenses or other losses suffered or payments made by the Receiving Party in connection with the claim and any associated judgment or settlement.
11.4 The Customer shall only Use the Intellectual Property and/or Materials or any of The Provider’s branding in the form stipulated by The Provider from time to time and shall observe all directions given by The Provider as to colours and size and representations of the Trade Mark and branding and their manner and disposition on the Customer’s products, packaging, labels, wrappers and any accompanying leaflets, brochures or other materials.
11.5 The Use of the Intellectual Property and/or Materials by the Customer shall at all times be in keeping with and seek to maintain its distinctiveness and reputation as determined by The Provider and the Customer shall cease any use to the contrary as The Provider may require.
11.6 The Customer shall not use any mark or name confusingly similar to the Trade Mark in respect of any of its Services or use the Trade Mark as part of any corporate business or trading name or style. The Provider may use the Customer’s trade marks for publicity purposes only in a form and manner approved by the Customer in writing in advance. The Provider may at any time refer to the Customer in The Provider’s marketing and advertising communications.
11.7 The Customer shall as soon as it becomes aware thereof give The Provider in writing full particulars of any use or proposed use by any other person, firm or company of a trade name, Trade mark or get up of goods or mode of promotion or advertising which amounts or might amount either to infringement of The Provider’s rights in relation to the Intellectual Property and/or Materials or to passing off.
11.8 If the Customer becomes aware that any other person, firm or company alleges that the Intellectual Property and/or Materials is invalid or that use of the Intellectual Property and/or Materials infringes any rights of another party or that the Intellectual Property and/or Materials is otherwise attacked or attackable the Customer shall as soon as reasonably possible give The Provider full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.
11.9 The Provider shall have the conduct of all proceedings relating to the Intellectual Property and/or Materials and shall in its sole discretion decide what action if any to take in respect of any infringement or alleged infringement of the Intellectual Property or passing off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property. The Customer shall not be entitled to bring any action relating to the Intellectual Property in its own name but shall reasonably assist The Provider upon The Provider’s reasonable request. The Provider agrees to reimburse the Customer’s reasonable expenses incurred in complying with clauses 11.7, 11.8 and 11.9 hereunder.
12.1 Both parties will take all commercially reasonable steps to ensure that any documents or other materials and data or other information which are supplied to the other party in the context of this Agreement and are clearly marked as confidential or are of a confidential nature shall remain confidential to the parties. Such information will only be made available by the parties to those personnel who have a reasonable need to know of it and the documents or other materials and data or other information or copies thereof will not be made available to any third parties. Either party is entitled to demand the return of all copies of any such documents or other materials and data or other information within 14 days by giving the other party written notice.
12.2 In particular, the Customer shall not reveal or disclose the Password and other information provided to the Customer by The Provider to enable the Customer to make use of the Services or the Further Services to any third party nor allow any third party use of or access to such information without the prior written permission of The Provider.
12.3 The Provider may during the course of its marketing activity utilize the Customer’s name to promote The Provider products and services.
12.4 This obligation of confidentiality will remain in force for ten (10) years beyond the expiration or termination of this Agreement.
12.5 This Section shall not apply to any documents or other materials and data or other information which are already in the public domain at the time when they are provided by either party, and shall cease to apply where either party is required by law to make a disclosure or if at any time the information becomes public knowledge through no fault of the other party.
12.6 Each party agrees that any information which is received from the other party in the context of this Agreement will only be used for the purposes of this Agreement.
13. Force Majeure
13.1 Neither party shall be responsible to the other in circumstances where some or all of the obligations (except for the obligation for the payment of Charges) under these Terms cannot be performed due to circumstances outside the reasonable control of the defaulting party including, without limitation, an Act of God, change in legislation, fire, explosion, flood, accident, strike, lockout or other industrial dispute, war, terrorist act, riot, civil commotion, failure of public power supplies, third party hacking, viruses, trojans, worms, logic bombs or other material attacking the Website, a denial-of-service attack, a distributed or malicious denial-of service attack, failure of communication facilities, unavailability of internet default of suppliers or sub-contractors, or the inability to secure computer processing facilities (including those of the necessary quality or security), obtain materials or supplies and, in all cases, the inability to do so except at increased prices (whether or not due to such causes). However, if such circumstances persist for more than 14 days, the non-defaulting party may terminate the Agreement and all Charges due to The Provider for Services and Further Services actually provided up to the date of termination shall become immediately due and payable.
14. Transfer and Sub-contracting
14.1 The Provider may at its reasonable discretion and upon reasonable prior notice to the Customer assign, transfer or deal in any other manner with all or any of its rights under the Agreement or any part thereof to a third party.
14.2 The Customer may not assign, sub-contract, sub-licence or otherwise transfer any rights or obligations under this Agreement or any part thereof without the prior consent in writing of The Provider
15.1 Except where otherwise expressly stated herein, this Agreement constitutes the entire Agreement between the parties relating to the subject matter of
the Agreement and, supersedes any previous agreement or understanding whatsoever whether oral or written relating to the subject matter of this Agreement.
Nothing in this clause 15.1 or any other provision in the Agreement shall operate to exclude or limit either party’s liability for fraud. In the event of
any conflict between this Agreement and the terms contained in the Order Confirmation, the this Agreement shall prevail; subject to any Modified Terms.
15.2 If any provision of this Agreement is found to be void and/or unenforceable, it will not affect the validity of any of the other provisions (or the remainder of the relevant provision), which shall remain valid and enforceable according to its terms.
15.3 Both parties shall use all commercially reasonable efforts to do or procure to be done all such further acts and to execute or procure the execution of all such other documents necessary to give effect to this Agreement or as are required under the terms of this Agreement.
15.4 The parties agree that there are no third party beneficiaries to this Agreement.
15.5 This Agreement will be governed by and construed according to the laws of British Columbia, without regard to its choice of laws provisions, and the parties submit to the exclusive jurisdiction of the provincial and federal courts located in Vancouver, British Columbia.
15.6 Within 30 days of Commencement Date, the Customer will approve a press release with content to be written by The Provider and approved by the Customer.
15.7 The parties are independent contractors, and nothing contained herein will be deemed or construed to create a joint venture, franchise, partnership, agency or similar relationship between the Customer and The Provider.
15.8 No delay or failure by either party to detect, protest or remedy the failure of the other party to perform any obligation under this Agreement will
constitute a waiver of such other party’s rights. No waiver of any provision of this Agreement or of any rights or obligations of either party hereunder
will be effective unless in writing and signed by an authorized officer of the waiving party.
15.9 All notices shall be in writing, addressed to the party at its address set forth on the Order Confirmation (in the case of the Customer) or in the definitions section (in the case of The Provider), or such other address as has been provided by notice, and sent by certified or registered mail, return receipt requested, express courier with receipted delivery, or other means providing proof of delivery.
15.10 This Agreement will be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
15.11 Each party warrants to the other that they have the power and authority to enter into the Agreement.