SOFTWARE AS A SERVICE (SAAS) TERMS AND CONDITIONS
These Software as a Service (SaaS) and Services Terms and Conditions (“Terms” or this “Agreement”) govern the purchase of the license to the Software, the access to Services and the use of the Website by the Client and its Users (“you”, “your”, and terms of similar meaning) made available by Bildhive Technologies Inc. (“we”, “us”, “Provider” and terms of similar meaning) and its suppliers, made pursuant to an Order Form (as defined below).
By accepting this Agreement, by (a) clicking a box indicating acceptance, (b) accepting or executing an Order Form that references this Agreement, or (c) 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 the individual accepting this Agreement 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 this Agreement does not have such authority, or does not agree with these Terms, such individual must not accept this Agreement 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.
1.1 “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 “Anti-Spam Laws” means any applicable federal, provincial and local laws, regulations and rules governing the sending of commercial electronic messages.
1.3 “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.
1.4 “Business Day” means any day except Saturday, Sunday or any day on which banks are generally not open for business in the City of Toronto, Ontario.
1.5 “Client” shall mean the individual or organization who is bound by the terms of an Order Form and these Terms and Conditions.
1.6 “Client Data” means any data or content inputted into the Software by the Client or any of its employees or Users and hosted on the servers of the Cloud Provider, including, but not limited to Client Marks and User Content.
1.7 “Client Marks” means the Client’s trademarks (registered and unregistered), trade names, designs, logos and other indicia of origin that are uploaded by the Client or its Users onto the Software or Website.
1.8 “Cloud Provider” has the meaning given in Section 6.1.
1.9 “Fees” means the fees to be paid by the Client pursuant to an Order Form, these Terms and any applicable Schedules.
1.10 “Order Form” means (i) the Bildhive Platform as a Service (SaaS) Order Form; (ii) an online order through the Website specifying the Services to be provided hereunder, that is entered into between the Client and the Provider, including any Schedules, addenda and supplements thereto.
1.11 “Personal Information” means any information relating to identifiable individuals, the collection, use or disclosure of which is regulated by Privacy Laws.
1.12 “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 appliable legislation.
1.13 “Provider Content” means any data or content created by and inputted into the Software by the Provider or any of its representatives, including, but not limited to templates, themes, layouts, and designs.
1.14 “Schedule” means a schedule, which is attached to this Agreement or which may be added hereafter by written agreement of the parties.
1.15 “Services” means the use of the Software and other related services to be provided by the Provider to the Client pursuant to the Order Form.
1.16 “Software” means the Bildhive automated workflow platform, including Provider Content, as a service licensed to the Client and the number of Project licenses purchased by the Client pursuant to the terms of the Order Form.
1.17 “Term” shall have the meaning given in Section 12.1.
1.18 “Third Party Content” means any data owned or licensed by a third party and inputted into the Software, including, but not limited to information derived from third party or social media user accounts and maps provided by Google Maps.
1.19 “User” means an individual user who (i) accesses the Website and/or is permitted to use the Software; and (ii) agreed to these Terms. Users may include employees or contractors of the Client and other individuals or entities who are authorized by the Client to use the Services under the Client’s project account.
1.20 “User Content” means any data or content inputted into the Software or Website, or generated within the Software by, a User, except for Client Data.
1.21 “Website” means Bildhive’s website made available www.bildhive.com or its sub domains or domains with identical names under other top domains and owned by Provider.
2. BILDHIVE SOFTWARE
The Software is a new home real estate sales and marketing platform that provides home builders, real estate brokers, agents, and marketing firms with a series of integrated applications that help them sell and market new home real estate pre-construction development projects. While the Software can support already existing real estate projects, it is ideally suited for new home builders, real estate brokerages and marketing agencies who need a unified and easy to use platform that allows them to market, manage, sell or lease real estate. Through the Software, Clients may create a project (“Project”) and use the applications available pursuant to an Order Form.
3.2 Additional Policies. In addition, by using the Software, you agree to be bound by any additional policies, guidelines, rules, obligations, agreements or documents communicated through the Software, including, without limitation, as applicable, any policies referred to in these Terms. For example, we may post additional policies, guidelines, rules, obligations or agreements that specifically relate to your use of the Software. You agree to comply with such policies, guidelines, rules, obligations or agreements even if they are not identified in these Terms.
4. USER ACCOUNTS
4.1 Provisioning and User Accounts. Upon agreeing to an Order Form, the initial Administrator of the Client will be permitted to register for a User account. 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 are only be available to specific user types.
4.2 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 or the Website (“Registration Data”); (b) maintain the security of the their password; (c) maintain and promptly update the Registration Data, and any other information they provide to the Software or the Website, 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 contractor of the Client or a Vendor of the Client).
5. LICENSE TO SOFTWARE, WEBSITE AND LICENSE RESTRICTIONS
5.1 License to Software and Website. Provider hereby grants to Client and authorized Users a non-exclusive, non-transferable license to use the Software and the Website and solely permit the Client and Users to use the Website and the functionality contained within the Software for legitimate purposes during the Term and subject to the applicable Order Form.
5.2 License Restrictions. Except as set forth in this Agreement, 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 or Website; (b) alter, merge, adapt or translate the Software or Website, or decompile, reverse engineer, disassemble, or otherwise reduce the Software or Website to a human-perceivable form; (c) sell, rent, lease, host or sublicense the Software (except as is incidental or necessary for the provision of the Software to Users); (d) modify the Software or Website or create derivative works based upon the Software or Website; provided however that the foregoing will not restrict Client’s rights to exploit any Client Data which may be incorporated into, reside in, or form a part of the Software; (e) use the Services or the Website in a manner that breaches the rights of any third party, any contract or legal duty or violate any Applicable Law; (f) copy the Services or Website or any part, feature, function or user interface thereof; (g) access or use the Services or Website in order to build a competitive product or service; (h) use the Services or Website other than for its intended purposes; and/or (i) do anything to interfere with or impair the intended operation of the Website.
6. HOSTING AND SUPPORT
6.1 Hosting. The Provider will cause the Software to be hosted on a cloud server maintained by a reputable third party provider (“Cloud Provider”). The Provider will be responsible for contracting with the Cloud Provider, and for paying all fees and charges of the Cloud Provider. All Client Data stored on the Services is located on servers operated by the Cloud Provider in Canada and/or the United States.
6.2 Support, Training. Support, maintenance and training Services are provided to the Client in accordance with the terms of the Provider’s Service Level Agreement.
6.3 Backups. The Provider will create a backup or cause its Cloud Provider 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 Client Data available.
7. CLIENT REPRESENTATIONS AND WARRANTIES; CLIENT RESPONSIBILITIES
7.1 Client Representations and Warranties. The Client represents and warrants that the Client’s use of the Services or Website and the use of the Services or Website by the Client’s Users will (a) be consistent with this Agreement and any licenses provided; and (b) comply with Applicable Law, including Privacy Laws and Anti-Spam Laws. The Client represents and warrants that he/she/it maintains all necessary permissions and has acquired consents (where required) to lawfully send electronic communications to third parties. 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.
7.2 Additional Responsibilities. The Client agrees (a) that 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; (b) the Client represents and warrants that it has the right to enter into this Agreement and to allow the Provider to perform the Services; (c) the Client is solely responsible for providing, updating, uploading, modifying and maintaining the Client Data; and (d) the Client acknowledges and agrees that the Software is not a marketplace and any contract of sale made through the Software is directly between the Client and his/her/its customer.
7.3 Client Indemnity Regarding Use of Services and Website and Client Data. The Client shall be solely responsible for all inputs, selection and use of the Services and Website and all Client Data or other data transmitted, received or created using the Services or Website, even if transmitted, received or created by someone else. 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 this Agreement.
7.4 Acceptable Use of the Services and Website. The Client and its Users may not: (a) use, or encourage, promote, facilitate or instruct others to use the Services or the Website for any illegal, harmful or offensive use or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive; (b) use the Services or the Website to violate the security or integrity of any network, computer or communications system, software application, or network or computing device; (c) make network connections to any users, hosts, or networks unless the Client has permission to communicate with them; and/or (d) 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. The Provider reserves the right, but does not assume the obligation, to investigate any violation of this Section or misuse of the Services or Website.
7.5 Sensitive Personal Information. The Client agrees that it will not use the Service to store or transfer the following Personal Information deemed “sensitive” or “special” under Applicable Law: health information, biometric or genetic information, Personal Information collected from minors, geo-location information of individuals, or information about an individuals’ racial or ethnic origin, trade union membership, sex life or sexual orientation, political opinions, or religious or philosophical beliefs.
8. FEES, PAYMENTS AND SUSPENSION OF SERVICE
8.1 Fees. In consideration for the Services described herein, the Client shall pay to the Provider, in advance, the Fees more particularly described on the Website, the Order Form, and any applicable Schedules, subject to identified usage limitations. Except as otherwise specified herein, on the Website or the Order Form, (i) the Fees are based on the Services purchased and not actual usage, (ii) payment obligations are non-cancelable and (iii) a subscription plan cannot be decreased during the relevant subscription term.
8.2 Additional Fees. If the Client exceeds its subscription plan usage limits (by exceeding their monthly email sends), the Client will incur additional Fees for the prior billing period in which they exceeded their email send limits. The additional Fees will be notified to the Client as soon as the subscription plan is exceeded and will also be detailed in the Client account and on their invoice along with their monthly Fees. If the Client pays their Fees annually and they exceed their email send limits during a particular calendar month, the Client will be charged for the additional email sends in the calendar month in which they were exceeded.
8.3 Change to Fees. The Provider reserves the right to introduce or change any Fees on or related to the Services from time to time, upon providing you with twenty (20) days advanced written notice, by e-mailing the Administrator(s) of the Client. If the Client does not accept the changed or new Fee, the Client must terminate these Terms or amend its Services prior to the end of the twenty (20) day period. After such period, if the Terms are not terminated or the Services are not amended, the Client or any of its authorized Users continued use or purchase of the Services after the effective date of the change indicates the Client’s agreement with the new or changed Fees. For clarity, any changes to the Fees only apply to future monthly or annual subscriptions.
8.4 Upgrading the Services. The Client acknowledges that the Provider will not automatically upgrade or downgrade a Client subscription plan despite the Client’s usage. The Client may elect to upgrade their subscription plan through the Software to account for increased email sends.
8.5 Client Payment Information. The Client is responsible for providing complete and accurate billing information to the Provider. The Client agrees that the Provider may update the Client’s payment information through the use of account refresher services provided by third party payment processors.
8.6 Recurring Payments. The Client agrees that once he/she/it chooses a subscription plan, such subscription plan shall automatically renew on an annual or monthly basis depending on the subscription plan (the “Renewal Date”). The Client authorizes Bildhive to automatically charge the Client for the applicable Fees on or after the Renewal Date unless the subscription plan has been terminated or cancelled in accordance with these Terms. The Client must cancel its subscription plan prior to the Renewal Date in order to avoid billing of the next period’s Fees. If the Client chooses to cancel its subscription plan during the Term, the Client may use the Software until the end of the Client’s then-current Term, but will not be issued a refund for the most recently (or any previously) charged Fees.
8.7 Taxes. 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. The Client shall pay to the Provider such taxes, levies and charges which the Provider is registered to charge and collect.
8.8 Suspension of Service and Acceleration. If any charge owing by the Client under these Terms or any other agreement is ten (10) days or more overdue, the Provider may, without limiting its other rights and remedies, accelerate the Client’s unpaid fee obligations under such agreements, so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full.
9. INTELLECTUAL PROPERTY, CLIENT DATA AND PRIVACY
9.1 Ownership of the Software and Website. Except for any grant of licenses in this Agreement or as otherwise expressly provided in this Agreement, 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 and Website. Nothing in this Agreement, 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 and Website.
9.2 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, other than pursuant to Section 9.3 of this Agreement, and will be collected, handled and used by the Provider only in compliance with the terms of this Agreement.
9.3 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 this Agreement.
9.4 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.
9.6 Third Party Content and Software. The Software may contain or provide the ability to integrate the Service with Third Party Content and/or third party software. The Client and all authorized Users agree that the Provider has no liability arising from use of any integrations or arising from such Third Party Content, third party software, and related services. The Provider may modify or cancel the integrations at any time, without notice.
9.7 License by Client to Use Feedback. The Client grants 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, the Services, or the Website.
10. DISCLAIMER AND LIMITATION OF LIABILITY
10.1 Disclaimer. Except as set out in the Order Form or this Agreement, the Services and the Website 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, title and non-infringement, unless otherwise specified in the applicable Order Form. The Provider disclaims all liability for any content posted on the Website that may be outdated, inaccurate or misleading. The Provider does not warrant that the Services or the Website will be error-free or will operate without interruption.
10.2 No Indirect, Etc. Damages. Under no circumstances shall either party be liable to the other party for any claim for (i) indirect, special or consequential damages, (ii) 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 this Agreement or any Services, even if advised of the possibility thereof.
10.3 Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement, the liability of either party 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 this Agreement shall not exceed the Fees paid or payable by the Client to the Provider under this Agreement in the twelve (12) months preceding the Loss.
10.4 Reasonableness of Limitations. The Provider, the Client and Users agree that the limitations contained in this Section 10 are reasonable in scope and form an integral part of this Agreement.
11.1 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 this Agreement, including its obligation to comply with all Applicable Law; or (b) any third party claim that the Client’s use of any Client Data or Third Party Content infringes, misappropriates or otherwise violates the intellectual property rights of any third party.
11.2 Indemnity by Provider. The Provider agrees to defend, indemnify and hold the Client, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Client may incur as a result of or in connection with: (a) any valid claim that the Software or any portion of it infringes the intellectual property rights of any third party; (b) any third-party claim relating to or resulting from any breach by the Provider of the Provider’s obligations under this Agreement, including its obligation to comply with all Applicable Law.
12.1 Term. The term of this Agreement (“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, this Agreement will automatically renew for successive terms equal to the length of time of the Initial Term (“Renewal Terms”), unless terminated in accordance with this Agreement.
12.2 Termination. (a) The Client may terminate this Agreement by canceling his/her/its subscription plan at any time by accessing the Software, going to his/her/its account settings and following the instructions provided. (b) Breach. Either party may terminate this Agreement if the other party materially breaches this Agreement, 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 this Agreement, 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.
12.3 Early Termination. If this Agreement is terminated pursuant to Section 12.2 prior to the end of such current term, the Client shall pay to the Provider, as liquidated damages and not a penalty, an amount equal to the total monthly Fees (as described in the Order Form) multiplied by the number of months remaining prior to the end of such current term.
12.4 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 or the Website; (c) change, suspend, or discontinue any aspect of the Software or the Website; and (d) impose limits on the Software or Website.
12.5 Effect of Termination. If this Agreement is terminated in accordance with Section 12.2, then: (a) the Provider may immediately deactivate the Client’s account and suspend access to the Software; (b) the Client may download all Client Data inputted into the Software; (c) 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; (d) 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, and (e) if not requested by the Client within thirty (30) days of termination, the Provider will have no obligation to retain Client Data and shall be entitled to, unless prohibited by Applicable Laws, delete all Client Data from all computer systems owned and controlled by the Provider.
13.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information includes Client Data. The Provider’s Confidential Information includes the Software, the Services and the terms and conditions of this Agreement. 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 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.
13.2 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 this Agreement; 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 this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
13.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.
13.4 Destruction. Each party, upon the request of the other party or within thirty (30) days after termination of this Agreement (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.
13.5 Indemnity. 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 13.
14.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. This Agreement shall be treated, in all respects, as an Ontario contract.
14.2 Survival. Any terms and conditions of this Agreement which by their nature extend beyond termination of this Agreement shall survive such termination. This includes, without limitation Section 9 (Intellectual Property, Client Data and Privacy) (but not section 9.3 (License from Client to Provider)), Section 10 (Disclaimer and Limitation of Liability), Section 11 (Indemnification), Section 12.5 (Effect of Termination), Section 13 (Confidentiality) and applicable provisions of Section 14 (General).
14.3 Publicity and Promotion. The Provider shall be permitted to disclose the Client’s name and logo as part of their Website customer list and marketing materials. Specific details regarding the use of the Services shall remain confidential. The Client may revoke his/her/its consent by providing written notice to the Provider.
14.4 Value-Added Resellers.Clients may acquire the Services through the Provider’s value-added resellers. Such value-added resellers are independent from the Provider and unilaterally determine their prices and terms. The Provider is not responsible for their actions, omissions, statements or offerings.
14.5 Beta Services. From time to time, the Provider (i) may invite a Client to try products or features related to the Software that are not generally available to all Clients or (ii) may release products or features related to the Software that are identified as beta, trial, proof of concept, sandbox, preview, pilot, limited release, or by a similar designation (collectively, “Beta Services”). Beta Services may be provided for evaluation or testing purposes only, and, therefore, may contain bugs or errors, and may not be as reliable as other features of the Software. The Beta Services are provided as-is basis without warranties of any kind and may be used at the Client’s own risk. The Client’s use of such features may include additional rules or restrictions that the Provider may place on their use. The Provider may discontinue Beta Services at any time in its sole discretion. Beta Services are not for production use, not supported and not subject to availability or security obligations. The Provider will have no liability for any harm or damage arising out of or in connection with the use of Beta Services. For the avoidance of doubt, Beta Services are a part of the Software, and, therefore, are subject to this Terms.
14.6 Dispute Resolution. (a) This Section 14.3 sets out the process (the “Dispute Resolution Process”) for resolving all disputes, issues, controversies, and/or claims arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement (“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.
14.7 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 this Agreement.
14.8 Force Majeure. Except as expressly provided otherwise in this Agreement, dates and times by which the Client or the Provider is required to perform under this Agreement, 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.
14.9 Non-Solicitation. During the Term and for a period of one (1) year following termination of this Agreement for any reason, neither party may, directly or indirectly, (a) solicit for employment any employee or independent contractor of the other party who was materially involved in the performance of this Agreement; or (b) induce or attempt to induce any employee or independent contractor of the other party who was materially involved in the performance of this Agreement to leave his or her employ or contract, as applicable, with such other party. The foregoing will not prevent either party from hiring any employee or independent contractor who responds to a job posting or advertisement that is not specifically targeted at such employee or independent contractor.
14.10 Currency. Unless otherwise specified in the Order Form, all references to amounts of money in this Agreement refer to United States of America (USD) currency.
14.11 Notices. Notices that we give to you (other than notice of amendment of this Agreement), 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 Website. It is your responsibility to periodically review the 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 at firstname.lastname@example.org.
14.12 Successors and Assigns. This Agreement shall ensure to the benefit of, and be binding on, the parties and their respective successors and permitted assigns. The Provider may assign this Agreement, the Order Form or any Schedule or any obligation hereunder, in its sole discretion. The Client may not assign this Agreement, the Order Form or any Schedule without the prior written consent of the Provider.
14.13 Severability. Any provision of this Agreement 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 this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
14.14 Entire Agreement. This Agreement, the Order Form and the Schedules constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.
14.15 Waiver. No term or provision of this Agreement 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.
14.16 Fully Negotiated Agreement. The Client and the Provider acknowledge and agree that all of the provisions of this Agreement have been fully negotiated, that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement 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.
14.17 Language. The parties have required that this Agreement and all deeds, documents and notices relating to this Agreement 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.
14.18 Modification of Terms. The Provider may modify this Agreement at any time by (a) posting a notice on the 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. Notwithstanding the foregoing, the information and material on the Website, and the Website, may be changed, withdrawn or removed at any time in the Provider’s sole discretion without notice.
14.19 Questions. If you have any questions regarding these Terms or your use of the Services, please contact us here:
Bildhive Technologies Inc.