SquareMarket Technologies Inc. dba Tab Commerce (the “Company”)
Last Modified Date: November 18, 2022
Effective Date: March 14, 2022
Parties This Agreement is between: SquareMarket Technologies Inc. dba “Tab” , a company incorporated under the federal laws of Canada (the “Company”), and Individuals and businesses who have registered for the use of the usetab.io online platform (the “Product”) or have accessed our Company website (the “Client” or “End User” or “you”) (each a “Party”, and collectively the “Parties”.)
If any End-User does not agree to this Agreement, such End-User shall not use the Website or the Product and shall not be granted a license to the Product or Website. See “Acceptance of the Terms”, below. If applicable, Client and/or End-User further agree to abide by all the terms of any third party which interacts with the Website and/or the Product, and such third party end user licensing agreement, or any other applicable digital distribution platform agreement, so long as such agreement does not conflict with the terms herein.
License Term. During the Initial Term or subsequent Renewal Term (as defined below), the Company grants to the End-User a non-exclusive, non-transferable, non-sub licensable, revocable license to the Product, the features of which are described in Schedule “B” to this Agreement.
The license can be revoked for breach of the Agreement and/or for any of the Prohibited Uses as defined below in Schedule “C” to this Agreement, examples of which are submission to the Company or any other End-Users of objectionable content, and/or acts of abuse to the Company or to any other End-Users, and/or of any Prohibited Use of the product, among others), and at the sole discretion of the Company.
Complete license terms are contained in Schedule “A” to this Agreement. The Company provides our Services to Users in the Province of Ontario, throughout Canada, and internationally, where permissible by local law. The Company offers transition services to Users, upon request, for migrating onto the Platform. Fees for transitions services are set on a case-by-case basis with the User’s prior consent. The Company also offers setup and project management services, upon request and priced on a case-by-case basis with the User’s prior consent. The availability of our Services in a given area is subject to change from time to time at our sole discretion. If you are accessing our Website or Product from a jurisdiction outside Canada, you hereby acknowledge agree that your use of the Website or Product shall, to the greatest extent permitted by applicable law, remain at all times subject only to the laws of Ontario and Canada. To the extent permitted by applicable law, we reserve the right to deny or terminate service to any User at our discretion. The Company makes every effort to ensure materials on the Website are displayed accurately with the same colours and images across different computers and devices. However, The Company cannot guarantee that your computer or device will accurately or consistently display image colours and sizing.
Tab will facilitate payments between customers and vendor on the customer's behalf via Tab Commerce Services Inc. ("TCS"), which will be the merchant of record in such transactions and make TCS a reseller of a vendor(s) products when they opt in to Tab Connect for Suppliers. Customer is responsible for payment on all invoices received via Tab from vendor(s).
End-User agrees to indemnify and hold harmless Company with respect to any suits or claims by Third Party Payment Processors or any third party (and any related costs, including legal fees) arising directly or indirectly out of any activity associated with such End-User , whether initiated by End-User or not (including all transactions, disputes, refunds, reversals, claims, fines associated with such activity, and use of the services in a manner prohibited under these Terms of Service or any agreement with any Third Party Payment Processor), and without limitation including (a) any failure by End-User to pay any amount owing by End-User to a Third Party Payment Processor in any way related to an account associated with End-User on Third Party Payment Processor’s system, or (b) any claim made against Company by a Third Party Payment Processor as a result of any inaccurate or incomplete information provided by End-User to such Third Party Payment Processor (or provided by End-User to Company, and which Company provided to Third Party Payment Processor). If Company makes any payment to a Third Party Payment Processor in relation to any such claim, then, without limiting any other remedies available to Company, End-Users authorize Company to use any authorized payment method to collect a corresponding amount from such End-User. From time to time, Company may change the Third Party Payment Processor it uses to support the Company Payment Services, or Company may offer the option of using other Third Party Payment Processors to support the Company Payment Services, or Company may elect itself to perform some or all of the services that were previously provided by the Third Party Payment Processor. If Company does so, then, in order to continue to use the Company Payment Services, End-User may be required to agree to additional terms imposed by Company or such other Third Party Payment Processor. If End-User does not wish to accept those terms, then such End-User must cease using the corresponding Company Payment Services. All payment is exclusive of any taxes or duties imposed by applicable tax laws in each Client’s and/or End-User’s tax jurisdictions, and the Company will not be responsible for any taxes or duties owed by the Client and/or End-User.
This Agreement shall apply to each Client and/or End-User commencing from the time that such End-User first registers to use the Product (the “Effective Date”) and, subject to the clauses that survive this agreement, until the termination of the Agreement at the conclusion of a one-month period (the “Initial Term”). The Agreement will renew automatically on a month-to-month basis thereafter (each a “Renewal Term”) until such time as it is terminated in accordance with the termination provisions of this Agreement.
The Product is provided “As-Is” and no refunds will be provided for early termination.
Pursuant to the amendment restrictions set out in Applicable Law (define below), the Company may add to, discontinue or revise this Agreement or any aspect, mode, design, or service provided under the Product at the Company’s sole discretion, which include but are not limited to the:
(a) scope of the features;
(b) timing of the features;
(c) software/hardware required for access to the Product; and
(d) geographic locations or jurisdictions in which certain features may be available
The Company may amend this Agreement without notice for non-material amendments. In the event of a material change during the Initial Term or prior to a Renewal Term, Company will provide the End-User with thirty (30) days’ notice (or the minimum notice period as required under Applicable Law, whichever is greater) of any such change (including changes in pricing) via e-mail to the email address supplied to the Company by the Client and/or End-User, setting out:
(a) the new or amended agreement terms;
(b) how such terms read formerly;
(c) the date of the coming into force of the amendment;
(d) the means in which to respond to the notice of amendment and the effects of not responding;
(e) the option to either terminate the agreement or retain the existing agreement unchanged; and
(f) the language of this provision with reference to the applicable consumer protection legislation rules for amending this Agreement and making any additional requirements for amendments as prescribed by law (if any).
It is the Client and/or End-User’s responsibility to send such notices of material changes to all End-Users associated with the End-User’s account. The Company highly recommends that each Client and/or End-User read any amendments carefully. Unless explicit consent is required by the law, the Company has the right to assume that each Client and/or End-User accessing the Product through the Product registration has accepted the change to this Agreement, unless such Client and/or End-User notifies the Company to the contrary, no later than thirty (30) days after the amendment comes into force (or the minimum number of days as required under Applicable Law, whichever is greater), that such Client and/or End-User desires to cancel the contract or deregister or unsubscribe from access to the Product.
The Company will post the most current terms to this Agreement conspicuously within the Product and the Client and/or End-User’s use of the Product will be subject to the most current terms as posted on the Product at such time. It is the Client and/or End-User’s responsibility to visit this page to find any updates that may have been made to the Agreement. Each Client and/or End-User hereby agrees that the Company shall not be liable to such End-User for any amendments to the Agreement.
3. SUSPENSION AND TERMINATION Client and/or End-Users may terminate their relationship with the Company by notifying the Company via email at email@example.com. The Client acknowledges that more than one End-User may be registered on behalf of the Client who are not responsible for payment, and therefore that services provided by the Product and the applicable fees shall continue until the Client has notified the Company of the Client’s desire to unsubscribe from the Product, to close all End-User accounts associated with the Client, and to cease the Client and End-User’s use of the Product.
The Company may suspend provision of the Product in the event that the Client and/or End-User fails to make any payment when due hereunder, the Client ceases to carry on its business in the normal course, if an event of Prohibited Use (as described in Schedule “C” to this Agreement) occurs, or if Client or End-User is in material breach of the Agreement. Suspension shall have no effect on the payment obligations of the Client and/or End-User during the Agreement Term or Renewal Term. A suspension event shall be included in the definition of Client and/or End-User material breach. The Client and/or End-User agrees to pay the Company’s reasonable expenses, including lawyer and collection agency fees, incurred in enforcing the Company’s right to payment.
At the Company’s discretion, the Company may terminate this Agreement immediately at any time and for any reason including, but not limited to:
an End-User or Client material breach of this Agreement, including failure to make payments when due;
if the Client and/or End-User has not adhered to any or all the provisions of the Agreement (such as a failure to pay fees when due) or if it appears that the Client and/or End-User not intend to or is unable to comply with the Terms, such determination to be made solely at the Company’s discretion;
for prolonged inactivity of any account if the Client and/or End-User has not logged in to the End-User’s account.
if the Company is required to terminate the relationship by law;
if the Company receives any notice of or discovers any event of Prohibited Use;
if provision of the Product is no longer commercially viable for the Company;
Upon termination of this Agreement with the Client and/or End-User, the Company immediately revokes the End-User’s license and/or the Client’s license, respectively, use the Product and may block all access to the End-User’s account, and may delete all data and information associated with the End-User’s account for thirty (30) days after such termination.
Refunds: For any aspects of the Product that require payment to the Company, no refunds will be provided for early termination where services have been rendered, and the End-User will pay the Fees and Expenses in full for the Product provided by the Company up to and including the termination date.
4. USE OF THE PRODUCT In order to use the Product, the Client and/or End-User must register using the Company’s registration page located within the app. The End-User understands and agrees that a representative of the Client’s organization may register the End-User for an account.
Account Creation. To access and use any Company Supplier Goods and Services or services, Client must first create a Company account (an “Account”). Company may reject any application for an Account or cancel any Account for any reason, in our sole discretion. Client or End-User represents and confirms they have the authority and are duly authorized to bind the legal entity in which the Account is being created for (whether for initial Account set-up or an Employee Account as defined below), including any employer, business, corporation, partnership, or other legal entity, including a sole proprietorship. In the case that the Account is being created for a sole proprietorship, the Client or End-User represents and confirms they are the age of majority in the jurisdiction in which they reside and use the Supplier Goods and Services from. In all cases, the Supplier Goods and Services may not be procured for any personal, household or family purpose. Client or End-User agrees to use their business-issued email address, and acknowledge and agree that Company will use the email address provided to open the Account (or as updated by Client from time to time) as the primary method for communication with Client.
Registration Information: The End-User agrees and understands that the End-User is responsible for maintaining the confidentiality of the End-User’s password, which, together with the End-User’s name and e-mail address (“User ID”), allows the End-User to access the Product. The End-User ID and password, together with any other contact information the End-User provides the Company at the time of signing up for the Product comprise the End-User’s “Registration Information.” The End-User agrees that all Registration Information provided to the Company will be accurate and up-to-date. The End-User agrees to keep the End-User’s password secure. The Company will not be liable if the Company is unable to retrieve or reset a lost password. If the End-User becomes aware of any unauthorized use of the End-User’s password or account, the End-User agrees to notify the Company via e-mail at firstname.lastname@example.org as soon as possible. The Client and/or End-user may not open an account if the Client and/or End-User is a competitor of the Company or an employee, representative, or agent of a competitor of the Company.
Permitted Uses: The Client and/or End-User agrees to use the Product only for purposes that are permitted, both by the Agreement and by any applicable law, regulation, or generally accepted practices or guidelines, in relevant local, national, and international jurisdictions. The Client and/or End-User agrees to adhere to any applicable privacy of personal information laws and regulations.
Unauthorized Access: The Client and/or End-User agrees to only access (or try to access) and use the Product through interfaces provided by Company. The Client and/or End-User shall not access (or try to access) and use the Product through any automated means, including, but not limited to, scrapers, scripts, robots, or web crawlers. The Client and/or End-User agrees not to use or attempt to use another End-User’s account. The Client and/or End-User agrees not to impersonate any person or entity, or falsely state or otherwise misrepresent the Client and/or End-User, the Client and/or End-User’s personal information, or the Client and/or End-User’s affiliations with any person or entity.
Moderation of content created by the End-User: The Client and/or End-User understands and agrees that although the Company is not required to moderate the End-User’s use of the Product, it may in its sole judgment review and delete any content in whole or in part, for any reason whatsoever, which without limitation, violate this Agreement or which might be objectionable, offensive, indecent, illegal, or that might violate the rights, harm, or threaten the safety of others.
Objectionable content created by others: The Client and/or End-User understands that when using the Product, the End-User may come across material that the End-User finds objectionable, offensive or indecent and agree that the End-User is using the Product at the End-User’s own risk. The End-User may alert the Company by using the support contact information contained herein.
User Responsibility: The Client and/or End-User agrees that the Client and/or End-User is solely responsible for any breach of the End-User’s obligations under the Agreement and for the consequences of any such breach, whether such breach is occasioned by the Client or an employee, representative, or agent of the Client. The Company has no responsibility to the Client and/or End-User or to any third party for such breaches or the consequences of such breaches (including losses or damage that Company may incur).
Technical Requirements: Use of the Product requires internet access through the End-User’s computer. The End-User may be required to have the most up-to-date operating system to use the Product, and some features of the Product may not be accessible with such technologies disabled.
User Responsibility for Equipment. The End-User agrees to be responsible for obtaining and maintaining any software, browsers, hosting services, other equipment and ancillary services needed to connect to, access or otherwise use the Product.
6. THIRD PARTY LINKS The Product may link to third-party websites and/or resources. Such links are provided as a convenience to the End-User only and do not imply an endorsement, warranty or guarantee by the Company of any such linked website or the company it purports to represent. The Company does not assume any responsibility or liability for the availability or accuracy of such links, and/or the content products or services provided at the destinations of such links. The Client and/or End-User is solely responsible for use of any such websites or resources and compliance with their policies. Should the End-User elect to enter into a binding contract with any such third party website and/or resource, the Client and/or End-User agrees to hold the Company harmless and hereby release the Company from any liability whatsoever, whether arising out of contract, tort or otherwise, for any liability, claim, injury, loss or damage suffered as a result of the End-User’s actions or the actions of any End-User associated with the End-User’s account, offering to accept or having accepted any products or services that are available from those sites.
7. INTELLECTUAL PROPERTY AND RIGHTS
Rights to content provided by Company. The Client and/or End-User acknowledges and understands that Company own all right, title and interest in: (a) the Product and all improvements, enhancements or modifications thereto; (b) the Product and any associated data files; and (c) all computer software; advertisements; sponsored content; and intellectual property associated with the Product (all such information, individually and collectively, being the “Product Content”), which the Client and/or End-User may have access to when using the Product.
Know-How. Subject to the provisions hereof respecting confidentiality and intellectual property, the Company shall be free to use any ideas, concepts or know-how developed or acquired by the Company during the provision of the Product under this Agreement to the extent obtained and retained by the Company’s personnel as impressions and general learning (the “Know-How”). Nothing in this Agreement shall be construed to preclude the Company from enhancing the Product based on the accumulation of Know-How.
The Client and/or End-User is not required to provide the Company with any comments, suggestions, recommendations, bug reports, requests or any other feedback (“Feedback”). In the event that the Client and/or End-User do provide the Company with Feedback, the Company may use such feedback to improve the Product or for any other purpose. Furthermore, the Company shall own such Feedback and the Company and its affiliates, licensees, clients, partners, third-party providers and other authorized entitled may use, license, distribute, reproduce and commercialize the Feedback, and the Client and End-User hereby assigns, irrevocably, exclusively and on a royalty-free basis, all such Feedback to the Company.
Limited license: The Company hereby grants the Client and/or End-User a non-exclusive, non-transferable, revocable, limited license to use the Product in accordance with this Agreement and the License Restrictions set out in the Summary of Terms. This limited license is subject to full payment of the Fees when due. This license may be revoked by the Company at the Company’s sole discretion and without notice upon breach of this Agreement by the Client and/or End-User and shall automatically be revoked upon termination or expiration of this Agreement.
The Company may, now or in the future, own rights to trade-marks, trade names, services marks, logos, domain names and other distinctive brand features which Company uses in connection with the operation of the Website and/or the Product (each such feature being a “Brand Right” and collectively being the “Brand Rights”). The Company does not grant the Client and/or End-User any right or license to use any Brand Right other than as expressly set out in this Agreement and in other licenses between the Client and/or End-User and the Company.
Licence to Brand Marks: The Company and Client and/or End-User agree and understand to grant to each other a perpetual, non-exclusive, royalty-free licence to use one another’s name, logos, and/or trademark (individually and collectively described as the “brand”) for the purposes of any press release, advertising, webpage, blog or other promotional, advertising or marketing material so long as no confidential information is disclosed, and such license shall be revocable upon written notice provided in the other in the brand owner’s sole discretion, such discretion to be reasonably exercised. None of the parties shall not do or allow to be done any act or thing that will in any way impair the rights of the other party’s brand.
8. LIMITATION OF LIABILITY The Client and the End-Users representing such Client individually and collectively hereby agree to release, remise and forever discharge the Company and the Company’s directors, employees, officers, and the Company’s affiliates, partners, service providers, vendors, and contractors and each of their respective agents, directors, officers, employees, and all other related persons or entities from any and all manner of rights, losses, costs, claims, complaints, demands, debts, damages, causes of action, proceedings, liabilities, obligations, legal fees, costs and disbursements of any nature whatsoever, and for any special, indirect or consequential, incidental or exemplary damages, including but not limited to damages for loss of profits, goodwill, use data, or other intangible losses (collectively, a “Claim”), whether in contract or tort, whether known or unknown, which now or hereafter arise from, to the maximum extent allowed by law, that relate to, any use of the Product whatsoever.
THE CLIENT AND END-USER ACKNOWLEDGES AND AGREES THAT: (A) THE WEBSITE AND THE PRODUCT ARE TO BE USED “AS-IS”, WITH NO WARRANTIES ON FITNESS FOR THE PURPOSE, MERCHANTABILITY OR OF ANY OTHER KIND, WHETHER EXPRESSED OR IMPLIED; AND THE END-USER ACKNOWLEDGES, AGREES AND UNDERSTANDS THAT THE END-USER USES THE WEBSITE AND THE PRODUCT AT THE END-USER’S OWN RISK; (B) THE COMPANY IS HEREBY RELEASED FROM ANY AND ALL LIABILITY FOR USE OF THE WEBSITE AND THE PRODUCT; AND (C) THE CLIENT AND END-USER HAS REVIEWED THE FOLLOWING LIST OF POTENTIAL EVENTS SPECIFICALLY DISCLAIMED AS EXAMPLES FOR WHICH THE CLIENT AND END-USER HAS SPECIFICALLY RELEASED THE COMPANY FROM ANY AND ALL LIABILITY FOR (AMONG OTHERS):
(a) For non-Product failures: responsibility for any failure of, or damages to, any hardware devices, equipment or networks or internet access, content or data, or third party applications used by the Client and/or End-User in connection with the Product;
(b) For communication failures or Product downtime: whether due to maintenance or other reasons, any error, inaccuracy, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Product content, End-User User Data, use of Product and/or any communications between the End-Users and the Product;
(c) For loss of access as a result of failure to receive payment: account suspension or termination as a result of the End-User’s insufficient funds to make payment or payment processing issues that are beyond the Company’s control (such as but not limited to, power outages, interruptions of cellular service, overzealous fraud protection rules applied by the User’s payment card brand or acquirer bank, or any other interface from an outside force);
(d) For content inaccuracy: any inaccuracy in content and/or recommendations by the Company in the Company content and/or the End-User and/or Client User Data, and the Client and End-User is responsible for ensuring that that the information entered into the Company’s system by such End-User is accurate, reliable and complete, and agrees that the provision or storage of End-User Data through the Product does not constitute the Company’s endorsement or warranty as to the accuracy of such content;
(e) For compliance with law: the compliance of such End-User Data with applicable legislation including privacy legislation, and Client and End User agree that the provision or storage of End-User Data through the Product does not constitute the Company’s endorsement or warranty as to compliance with laws;
(f) For online discussions: responsibility or liability for any user-generated commentary, ratings or reviews of the Client and/or End-User and/or an employee of a Client and/or End-User posted to the Product, or any consequences as a result of the ratings or reviews of an employee, including but not limited to termination of an employee, and ratings and reviews posted to the Product DO NOT reflect the Company’s views;
(g) For monitoring: liability for monitoring the Product or for unauthorized or unlawful content on the Product or use of the Product by any of the Product’s End-Users;
(h) For non-infringement: direct or indirect, express or implied representation or warranty as to title and non-infringement of intellectual property in relation to the Product.
(i) For processing of content: liability for any damages that may arise by the Client’s use and/or direct or third-party processing of End-User Data, and the Client and/or End-User further agrees and acknowledges that the Company is not liable for any damages that may arise if Client and/or End-User Data is misdirected in error, subject to, subject to the Company’s legal requirements relating to the protection of personal information under Applicable Law;
(j) For communications directly or through the Company’s Product: liability for any damages that may arise for communications received to the Client and/or End-User through the User’s access to the Product and/or for the posting of information on the Product, Website, blog, account or any affiliated social media, including but not limited to, Client and/or End-User Data, pictures, written reviews, personal information, and/or comments made from the End-User’s personal point of view;
(k) For unauthorized activities: unauthorized activities directed towards the Product or its Client and/or End-Users including identity theft, fraud or unauthorized access; viruses, denial of service attacks, and any items that are included in the definition of Prohibited Use as set out as Schedule “C” to this Agreement; and/or
(l) For force majeure: any force majeure event as described in this Agreement and/or any matter beyond the Company’s reasonable control. In the event that there is a finding of liability pursuant to the dispute resolution provisions of this Agreement that is contrary to the foregoing, the Client and End-Users agree that such damages shall be limited in the aggregate for all Claims related to all of the End-Users registered on behalf of a Client and the Client itself (individually and collectively, the Claimants) to the fees or charges which the Claimants have paid for the Product [I don’t think this next line would be enforceable, too restrictive, could be seen as inequitable to user], whether or not any or all of the Claimants have been advised of the possibility of such damages or such Claim was reasonably foreseeable and notwithstanding the sufficiency or insufficiency of any remedy provided for herein.
9. INDEMNIFICATION To the extent permitted by applicable laws, the Client and/or End-User agree that the Client and/or End-User will defend, indemnify and hold harmless the Company and the Company’s officers, directors, shareholders, employees, agents and representatives, from and against any and all damages, judgments, liability, costs and expenses (including without limitation any reasonable legal fees), in whole or in part arising out of or attributable to: (a) generally, for the Client and/or End-User’s breach of this Agreement; the End-User’s access to and/or use of the Website or Product; and any loss of, or damage to, any property, or injury to, or death of, any person (including the Client and/or End-User) caused by the Client and/or End-User’s access to and/or use of the Website or Product; and (b) specifically, for the End-User’s breach of the intellectual property rights of any third party to this Agreement; and/or (c) for any Prohibited Use. The End-User agrees that the Client and/or End-User will be solely responsible for all activities that occur under the End-User’s account, whether the End-User is aware of them or not. The Client and/or End-User agrees to hold the Company harmless and release the Company from any loss or liability whatsoever that the Client and/or End-User may incur as a result of someone other than the Client and/or End-User using the End-User’s password or account, either with or without the Client and/or End-User’s knowledge. The Client and/or End-User agree to indemnify the Company for any damages, third party claims or liabilities whatsoever that the Company may incur as a result of activities that occur on or through the End-User’s account, whether or not the Client and/or End-User were directly or personally responsible.
10. GOVERNING LAW AND FORUM OF DISPUTES The Client and/or End-User agree that the laws of the province of Ontario and the federal laws of Canada as applicable therein, without regard to the principles of conflict of laws (“Applicable Law”), will govern this Agreement and any dispute of any sort that may arise between the Client and/or End-User and Company. With respect to any disputes or claims, the Client and/or End-User agree not to commence or prosecute any action in connection therewith other than in the province of Ontario, and the Client and/or End-User hereby consent to and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the provincial courts of Ontario. The Client and/or End-User agree to pay reasonable attorneys' fees and court costs incurred by the Company to collect any unpaid amounts owed by the Client and/or End-User.
11. EXPENSES Other than in the event of a dispute, in which case the apportionment of expenses shall be determined pursuant to the dispute resolution rules, each Party shall be responsible for its own legal fees and other expenses incurred in connection with the negotiation of these terms (if any) and the performance of any of such Party’s obligations hereunder.
12. FORCE MAJEURE The Client and/or End-User agree that the Company are not liable for a delay or failure in performance of the Product or the provisions of this Agreement caused by reason of any occurrence of unforeseen events beyond the Company’s reasonable control, including but not limited to, acts of God, natural disasters, power failures, server failures, third party service provider failures or service interruptions, embargo, labour disputes, lockouts and strikes, riots, war, floods, insurrections, legislative changes, and governmental actions.
13. SEVERABILITY If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
14. HEADINGS The insertions of headings are for convenient reference only and are not to affect the interpretation of this Agreement.
15. ASSIGNMENT OF AGREEMENT The Client and/or End-User may not, without the Company’s prior written consent, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Company may assign this Agreement to a third party at any time in the Company’s sole discretion. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.
16. WAIVER The Client and/or End-User agrees that if the Company does not exercise or enforce any legal right or remedy which is contained in this Agreement or which the Company has the benefit of under any Applicable Law, this will not be taken to be a formal waiver of the Company’s rights and that those rights or remedies will still be available to Company. Waivers must be in written form and signed by an authorized representative of the Company.
17. SURVIVAL OF AGREEMENT All covenants, agreements, representations and warranties made in this Agreement shall survive the End-User’s acceptance of this Agreement and the termination of this Agreement.
19. CONTACT By providing the Company with the End-User’s email address, whether provided directly by the End-User or by the Client on behalf of the End-User, the End-User agrees to receive all required notices electronically, to that e-mail address or by mobile notifications via the Product. It is the End-User’s responsibility to update or change that address, as appropriate. If the Client and/or End-User have any questions or comments regarding this Agreement, please contact the Company’s head office by email at email@example.com.
Prohibited Uses The Client and/or End-Users may use the Product only for lawful purposes, and may not use the Product in any manner that:
(a) breaches any applicable local, national or international law or regulation;
(b) may in any way be considered harassment to another person or entity;
(c) may in any way be unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
(d) may in any way damage, disable, overburden, and/or impair the Product server, or any network connected to the Product server, and/or interfere with any other party’s use or enjoyment of the Product; (e) is in any way abusive, defamatory, misleading, fraudulent, pornographic or otherwise explicit in nature or written in bad faith;
(f) harms or attempts to harm minors in any way;
(g) will abuse either verbally, physically, written or other abuse (including threats of abuse or retribution) of any Product customers, employees, members, or officers;
(h) will cause sensitive personal information records of any individual (including, but not limited to, credit card information, personal health records, military information, and passport information) to be attained or used illegally or in an unauthorized manner;
(i) will decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying the Product;
(j) will modify, rent, lease, loan, sell, distribute or create any derivative products or services (or parts of services products or services) based on the Product Content that the End-User does not own or to which the End-User has rights, or to create derivative works based on the Product;
(k) will infringe upon the Company’s intellectual property or adapt, reproduce, publish or distribute copies of any information or material found on the Product in any form (including by e-mail or other electronic means), without the Company’s prior written consent;
(l) is for the benefit of or permit a third party, who is not a registered End-User, to use the Product;
(m) will attempt to gain unauthorized access to, or disrupt the integrity or performance of the Product or the data contained therein;
(n) will use the Product to upload, post, link to, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or any telecommunications equipment
(o) will the post or distribute any computer program that damages, detrimentally interferes with, surreptitiously intercepts, or expropriates any system, data, or personal information
(p) will disrupt the functioning of the Product, in any manner; and/or
(q) in the event that the Product is being used on a mobile device, shall not be used in a way that distracts the End-User and/or prevents the End-User from obeying traffic or safety laws, and any of the foregoing (“Prohibited Uses”) may, once investigated, result in immediate account termination for an End-User account and agreement and/or termination of an agreement with the Client who has registered the account for such End-User. Page Break
The Company provides a technology platform (the “Platform”), that connects restaurant suppliers (“Platform Supplier”) and restaurants (“Platform Customer”) for processing and managing payments between restaurants and suppliers, facilitating communications between restaurants and suppliers, and managing logistical coordination between restaurants and suppliers (the "Services"). This Platform schedule governs the Platform Supplier’s and Platform Customer’s access and use of the Platform. For clarity, the Platform Supplier and Platform Customer must comply with both the terms hereunder and the terms of this Agreement (the Supplier Goods and Services License Agreement and End User License Agreement).
COMPANY IS NOT A PARTY TO ANY AGREEMENT OR TRANSACTION THAT MAY BE FORMED BETWEEN A PLATFORM SUPPLIER AND PLATFORM CUSTOMER, WHETHER OR NOT FORMED THROUGH A COMPLETED TRANSACTION ON THE PLATFORM OR OTHERWISE. END-USER AGREES AND CONFIRMS THAT COMPANY HAS NO RESPONSIBILITY NOR LIABILITY FOR THE ACTS OR OMISSIONS OF ANY PLATFORM SUPPLIER OR ANY PLATFORM CUSTOMER. COMPANY WILL NOT ASSESS, GUARANTEE, NOR VERIFY THE SUITABILITY, LEGALITY OR ABILITY OF ANY PLATFORM CUSTOMER OR PLATFORM SUPPLIER. PLATFORM SUPPLIERS AND PLATFORM CUSTOMERS ARE INDEPENDENT AND END-USER UNDERSTANDS AND AGREES THAT COMPANY DOES NOT ITSELF PUBLISH ANY OFFERS NOR PROVIDE ANY SERVICES OR PRODUCTS OTHER THAN PROVIDING THE PLATFORM, A TECHNOLOGY PLATFORM, TO CONNECT PLATFORM SUPPLIERS AND PLATFORM CUSTOMERS AND PROVIDE THE SERVICES. COMPANY DOES ENGAGE DIRECTLY WITH THE PLATFORM SUPPLIERS OR PLATFORM CUSTOMERS, NOR DOES COMPANY ASSIST IN THE FACILITATION OR ARRANGEMENT OF TRANSACTIONS ON THE PLATFORM; NOR DOES COMPANY TAKE ANY TITLE, ANY OWNERSHIP INTEREST OR CONTROL OF ANY GOODS OR SERVICES FOR WHICH PAYMENT IS COMPLETED THROUGH THE PLATFORM. COMPANY IS NOT THE RETAILER OF ANY PRODUCTS OR SERVICES OFFERED BY PLATFORM SUPPLIERS, NOR IS IT IN THE RESTAURANT OR DELIVERY BUSINESS. COMPANY IS NOT LIABLE, NOR RESPONSIBLE, AND NOR DOES IT GUARANTEE ANY OBLIGATION OF A PLATFORM SUPPLIER OR PLATFORM CUSTOMER, INCLUDING BUT NOT LIMITED TO, THE DELIVERY OF GOODS OR SERVICES RELATED TO A COMPLETED TRANSACTION ON THE PLATFORM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY DOES NOT MAKE ANY WARRANTY REGARDING THE AVAILABILITY, PRICING, ACCURACY, QUALITY OR TIMELY DELIVERY OF PRODUCTS OR SERVICES OFFERED BY PLATFORM SUPPLIERS OR REGARDING PAYMENTS OR COMMUNICATIONS CONDUCTED THROUGH THE PLATFORM. ANY DISPUTES BETWEEN A PLATFORM SUPPLIER AND A PLATFORM CUSTOMER RELATING DIRECTLY OR INDIRECTLY TO THE PLATFORM, MUST BE RESOLVED ENTIRELY BETWEEN THE PLATFORM CUSTOMER AND THE PLATFORM SUPPLIER, AND BOTH PLATFORM CUSTOMER AND PLATFORM SUPPLIER HEREBY FULLY RELEASE COMPANY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SUPPLIERS AND LICENSORS (“AFFILIATES”) FROM ANY PRESENT OR FUTURE CLAIMS REGARDING ANY SUCH DISPUTES AND SHALL INDEMNIFY THE COMPANY AGAINST ANY COSTS, DAMAGES, OR LIABILITIES ARISING FROM A DISPUTE BETWEEN A PLATFORM SUPPLIER AND PLATFORM CUSTOMER. COMPANY AND ITS AFFILIATES ARE NOT RESPONSIBLE NOR LIABLE FOR ANY FAILURE OF A PLATFORM CUSTOMER COMPLETING TO PAY AMOUNTS WHICH ARE OR MAY BECOME DUE BASED ON THE TERMS SET OUT IN AN AGREEMENT BETWEEN A PLATFORM SUPPLIER AND PLATFORM CUSTOMER. ORDERS ACCEPTED OR PROCESSED THROUGH THE PLATFORM ARE COMPLETED AT PLATFORM SUPPLIER'S OWN RISK. THE COMPANY IS NOT RESPONSIBLE FOR THE PLATFORM SUPPLIER’S OR THE PLATFORM CUSTOMER’S FOOD PREPARATION OR THE SAFETY OF THE FOOD, AND DOES NOT VERIFY PLATFORM SUPPLIERS’ OR PLATFORM CUSTOMERS’ COMPLIANCE WITH APPLICABLE LAWS OR REGULATIONS.
Platform Suppliers . The Platform Supplier is solely responsible for ensuring that their use of the Platform meets all legal and regulatory requirements, including any language translation requirements, for all jurisdictions in which they operate. The Platform Supplier is solely responsible for ensuring that they fulfill the terms of each order accepted or processed with the assistance of the Platform.
Licenses and Permits. Company and its Affiliates are not responsible for the accuracy and or verifications of any and all licenses and permits required to conduct business and sell particular products including alcohol. It is the responsibility of the Platform Supplier and Platform Customer to confirm and verify that any and all licenses and permits required for the Platform Supplier and Platform Customer to conduct their businesses are in place.
Platform Customers . It is the sole responsibility of the Platform Customer, as the case may be, to ensure the fulfilment of the terms of each order placed or processed by the Platform Customer, and it is acknowledged and understood that orders placed and processed with the assistance of the Platform by Platform Customers is at their own risk. Company and its Affiliates are not responsible nor liable for any failure of a Platform Supplier to complete the sale and/or delivery of goods or services in compliance with the terms set out in any agreement between the Platform Customer and the Platform Supplier. Company and its Affiliates have no responsibility or liability for any act, omission or breach by a Platform Supplier.
Unauthorized Charges. If there are any unauthorized charges on a Platform Customer's credit card relating to an order placed by a Platform Customer with the assistance of the Platform, then the Platform Customer must advise Company at firstname.lastname@example.org. In such a case, a Platform Customer's exclusive remedy is against the Platform Supplier and has no remedy against Company and its Affiliates unless due to the gross negligence or wilful misconduct of the Company and its Affiliates.
Platform Offering is not Binding. Platform Customer acknowledges that information made available through the Supplier Goods and Services does not constitute an offer, and that no order is binding on a Platform Supplier until accepted by the Platform Supplier in its sole discretion, and may be subject to variations in pricing or stock, depending on the Platform Supplier's current stock availability.
Platform Fees. The Platform Supplier shall pay Company a fee equal to ten percent (2.5%) (the “Platform Supplier Fee”), or as otherwise determined by the Company in its sole discretion on a case-by-case basis, of the amounts payable by the Platform Supplier in connection with an order managed on the Platform (“Platform Order”). The Platform Supplier hereby authorizes the Company to deduct the Platform Supplier Fee from the Platform Order and such Platform Supplier Fee shall be automatically released to Company (“Platform Supplier Fee Release”) upon the release of the Platform Order to the Platform Customer. Company is not the Platform Supplier’s trustee or fiduciary in respect of any payments or any agreements between the Platform Supplier and Platform Customer.
Platform Offering Subject to Approval. The Company may remove Platform Offerings from the Platform at its discretion. Any and all Platform Offerings shall be subject to the Company’s approval to be published on the Platform.
Platform Data. The Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform and Platform Offerings and related systems and technologies (the “Platform Data”) provided that such the Platform Data may not include any End-User data other than to provide an Algorithm Update to the Platform Supplier and End-User, in which case such End-User data shall not be shared externally and shall be included solely in aggregate, anonymous, and de-identified form that is in no way identifiable with End-User, End-User’s business, or any personal information related to the End-User data, for the purpose of improving the Company Supplier Goods and Services (the “Algorithm Update"), and the Company will be free (during and after the term of this Agreement) to use such information and data to improve and enhance the Company Supplier Goods and Services, Platform and for other development, diagnostic and corrective purposes in connection with the services and other the Company offerings.