.svg)
%402x.png)
Terms and Conditions
Last updated: November 19, 2024
BY USING THE SERVICES (AS DEFINED BELOW) OR BY CLICKING TO ACCEPT THIS END USER LICENSE AGREEMENT (THIS "AGREEMENT"), YOU ACCEPT AND AGREE TO BE BOUND AND COMPLY WITH THIS AGREEMENT AND OUR PRIVACY POLICY, FOUND AT https://www.pippin-ai.com/privacy, INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THIS AGREEMENT OR THE PRIVACY POLICY, YOU MUST NOT ACCESS OR USE THE SERVICES.
BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU: ARE OF THE LEGAL AGE OF MAJORITY TO FORM A BINDING CONTRACT WITH THE PROVIDER; AND MEET ALL OF THE ELIGIBILITY REQUIREMENTS DISCUSSED HEREIN. IF YOU DO NOT MEET ALL OF THESE REQUIREMENTS, YOU MUST NOT ACCESS OR USE THE SERVICES.
This Agreement is made between PIPPIN AI CORPORATION, a corporation organized under the laws of British Columbia, having an office at 25th Floor, 666 Burrard Street, Vancouver, British Columbia V6C 2X8, Canada ("Provider") and YOU, as an Authorized User under the SaaS Agreement (as defined below) (each a "Party" and together the "Parties").
WHEREAS, Provider has entered into a Software as a Service Agreement (the "SaaS Agreement") for the Services with Customer (as defined below);
AND WHEREAS, Customer has made the Services available to the Authorized User, subject to the terms and conditions of the SaaS Agreement, this Agreement, and other terms or conditions that Customer and/or Provider may impose upon the Authorized User from time to time;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows:
1. Definitions.
(a) "Aggregated Statistics" means data and information related to Customer's (including Authorized User's) use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services, and all Intellectual Property Rights therein.
(b) "Authorized User" means you in your capacity as one of Customer's employees, consultants, contractors, real estate agents, residents, tenants, and owners as listed at Exhibit A to the SaaS Agreement: (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the SaaS Agreement; and (ii) for whom access to the Services has been purchased under the SaaS Agreement.
(c) "Confidential Information" has the meaning set forth in Section 5.
(d) "Customer" means the entity that makes the Services available to you as an Authorized User pursuant to the SaaS Agreement.
(e) "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or Authorized User through the Services.
(f) "Documentation" means Provider's user manuals, handbooks, and guides relating to the Services provided by Provider to Authorized User or Customer either electronically or in hard copy form, including any end user documentation relating to the Services available via the Services and/or on Provider's website.
(g) "Feedback" has the meaning set forth in Section 6(c).
(h) "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
(i) "Initial Term" has the meaning set forth in Section 10(a).
(j) "Intellectual Property Rights" means any right or protection existing from time to time in a specific jurisdiction, whether registered or not, under any patent law or other invention or discovery law, copyright law, performance or moral rights law, trade secret law, industrial design law, confidential information law (including breach of confidence), integrated circuit topography, trade-mark law, trade-name law, passing off, unfair competition law or other similar laws, and includes legislation by competent governmental authorities and judicial decisions under common law or equity, and for greater certainty includes the right to file any applications, and the right to claim for the same the priority rights derived from any applications filed under any treaty, convention, or any domestic laws of a country in which a prior application is filed.
(k) "Losses" has the meaning set forth in 8(b).
(l) "Notice" has the meaning set forth in Section 11(b).
(m) "Provider IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or Authorized User in connection with the foregoing, including all Intellectual Property Rights therein. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's (including Authorized User's) access to or use of the Services, but does not include Customer Data.
(n) "SaaS Agreement" has the meaning set forth in the recitals.
(o) "Service Suspension" has the meaning set forth in Section 2(g).
(p) "Services" means the software-as-a-service provided by Provider.
(q) "Term" has the meaning set forth in Section 10(a).
(r) "Third Party Claim" has the meaning set forth in Section 8(a)(i).
(s) "Third-Party Products" means any third-party products provided with or incorporated into the Services.
2. Access and Use.
(a) Provision of Access. Subject to the terms and conditions of this Agreement, Provider hereby grants Authorized User a right to access and use the Services during the Term. Such use is limited to Customer's internal use. Provider shall provide to Customer the means necessary to generate passwords and network links or connections to allow Authorized User to access the Services. Authorized User acknowledges that the quality of the Services, the response time or access to certain features of the Services may depend on the: (i) capabilities of the electronic communication network; and (ii) device by which Authorized User accesses and uses the Services, which shall be the responsibility of Authorized User and not the responsibility of Provider.
(b) Account Security. Any information used to access the Services by Authorized User, including any username or password, must be treated as confidential. Authorized User shall keep any such information secure and shall not disclose any such information to any other person or entity. Authorized User shall access and use the Services only on the electronic communication network and device provided to Authorized User or otherwise authorized by Customer for Authorized User to use for the purpose of accessing and using the Services. Authorized User understands that their account is personal and that Authorized User is responsible for any unauthorized access or use associated with their account.
(c) Privacy and Data Security. Provider may collect, use, and disclose personal information in accordance with its privacy policy, available at https://www.pippin-ai.com/privacy, which Provider may amend from time to time in its sole discretion, and as otherwise permitted or required by law. Provider may host the Services and/or store Customer Data in Canada, the United States, and/or such other jurisdictions identified to Customer from time to time by notice. In the event of any security issues arising in connection with the Services, Customer shall be responsible for notifying Authorized User and other affected parties; provided, however, that Provider retains the right (without any obligation) to do so at Customer's expense. Customer is responsible for obtaining all necessary consents for the collection, use, or disclosure of personal information via the Services. Customer and Authorized User must not provide or otherwise make any personal information available to Provider, via the Services or otherwise, without all necessary consents from each Authorized User in accordance with applicable laws, including for the purposes described in Provider's privacy policy.
(d) Documentation. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Authorized User a non-exclusive, non-sublicenseable, non-transferrable license to use the documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services by Authorized User.
(e) Use Restrictions. Authorized User shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Authorized User understands that their access to the Services may be revoked by Provider if Customer breaches the terms of the SaaS Agreement or if Authorized User breaches the terms of this Agreement or any other terms or instructions that Customer may impose upon Authorized User. Authorized User shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) use the Services in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage including: (A) power generation systems; (B) aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; (C) safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and (D) military or aerospace applications, weapons systems, or environments.
(f) Reservation of Rights. Provider reserves all rights not expressly granted to Authorized User in this Agreement or to Customer in the SaaS Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to any Authorized User or any third party any Intellectual Property Rights or other right, title, or interest in or to the Provider IP.
(g) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may suspend Authorized User's access to any portion or all of the Services if: (i) Customer breaches the SaaS Agreement; (ii) Customer suspends Authorized User's access to any portion or all of the Services; (iii) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP, (B) any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider, (C) any Authorized User is using the Provider IP for fraudulent or illegal activities, (D) subject to applicable Law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Provider's provision of the Services to any Authorized User is prohibited by applicable law; or (iv) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Authorized User to access the Services; (any such suspension described in subclause (i), (ii), (iii), or (iv), a "Service Suspension"). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Customer shall be responsible for communicating all such written notices to Authorized User. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or Authorized User may incur as a result of a Service Suspension. without limiting the generality of the foregoing, as between the Parties, AUTHORIZED USER IS RESPONSIBLE FOR ALL USES OF CUSTOMER DATA, INCLUDING ANY USE BY AUTHORIZED USER, INCLUDING MAKING BACKUPS OF CUSTOMER DATA ON A REGULAR BASIS.
(h) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Authorized User's use of the Services and collect and compile Aggregated Statistics. As between Provider and Authorized User, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Authorized User acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Authorized User agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law. For greater certainty, Authorized User hereby assigns to Provider all right, title, and interest, including all Intellectual Property Rights in and to the Aggregated Statistics.
(i) Artificial Intelligence. Provider may anonymize the Customer Data and use such anonymized information for any purpose, including for the purposes of improving the Provider IP, including by way of using such anonymized information as training data for artificial intelligence and/or machine learning apparatus and methods.
3. Customer Responsibilities.
(a) General. Authorized User is responsible and liable for all uses of the Services and Documentation, whether such access or use is permitted by or in violation of this Agreement.
(b) Third-Party Products. Provider may from time to time make Third-Party Products available to Authorized User. For the purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions made available to Authorized User and/or Customer from time to time. If Authorized User does not agree to abide by the applicable terms for any such Third-Party Products, then Authorized User shall not install or use such Third-Party Products.
(c) Validation. AUTHORIZED USER IS RESPONSIBLE FOR ALL USES OF THE SERVICES. THE SERVICES ARE NOT LEGAL ADVICE, TECHNICAL ADVICE, MEDICAL ADVICE, FINANCIAL ADVICE, OR ANY OTHER KIND OF ADVICE. THE SERVICES INCORPORATE ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING TECHNOLOGIES, INCLUDING GENERATIVE ARTIFICIAL INTELLIGENCE. RISKS OF SUCH TECHNOLOGIES INCLUDE INCOMPLETENESS, INCORRECTNESS, HALLUCINATION AND BIAS. AUTHORIZED USER MUST VALIDATE ALL OUTPUTS OF THE SERVICES, INCLUDING BY SEEKING PROFESSIONAL ADVICE AS NEEDED. AUTHORIZED USER MUST IMPLEMENT TECHNICAL, ADMINISTRATIVE, AND PHYSICAL SAFEGUARDS TO ENSURE THAT THE SERVICES ARE USED SAFELY AND IN A FAIR AND UNBIASED MANNER AND IN COMPLIANCE WITH ALL APPLICABLE LAWS, AND THAT INFORMATION OBTAINED VIA THE SERVICES, WHETHER OR NOT GENERATED BY GENERATIVE ARTIFICIAL INTELLIGENCE, ARE VALIDATED FOR CORRECTNESS, ACCURACY, SAFETY AND FAIRNESS. USE OF THE SERVICES BY AUTHORIZED USER IS AT AUTHORIZED USER'S SOLE RISK AND LIABILITY.
4. Service Levels and Support.
Provider has agreed to use commercially reasonable efforts to make the Services available in accordance with the service levels as set out in the SaaS Agreement. The access rights granted in this Agreement entitle Authorized User to the support services, if any, described from time to time on Provider's website located at https://www.pippin-ai.com, solely to the extent that Customer purchases support services.
5. Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly destroy or, at the disclosing Party's option, return to the disclosing Party, all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, the receiving Party shall not be required to return or destroy electronic backup copies of the disclosing Party's Confidential Information made in the ordinary course of business, provided that the receiving Party shall continue to be bound to treat such backup copies in accordance with this Agreement. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the effective date of this Agreement and will survive the termination or expiration of this Agreement.
6. Intellectual Property Ownership; Feedback.
(a) Provider IP. Authorized User acknowledges that, as between Authorized User and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Authorized User, on behalf of itself and Customer, hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer and make available the Service to Authorized User, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Authorized User sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Authorized User hereby assigns to Provider all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
7. Limited Warranty and Warranty Disclaimer.
(a) Provider warrants that the Services will conform in all material respects to the service levels as agreed to in the SaaS Agreement when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in the SaaS Agreement. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) THE PROVIDER IP, INCLUDING THE SERVICES, ARE PROVIDED ON AN "AS IS", "WHERE IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS, AND PROVIDER HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR AUTHORIZED USER'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Third Party Claims and Indemnification.
(a) Third Party Claims.
(i) If Authorized User, Customer or any third party claims that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's Intellectual Property Rights or other rights, or if such a claim appears possible, Authorized User agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Authorized User to continue use the Services. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(ii) This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services by Customer and/or Authorized User in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; or (D) Third-Party Products.
(b) Authorized User Indemnification. Authorized User shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any losses, damages, liabilities, costs (including reasonable legal fees) ("Losses") incurred by Provider resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's Intellectual Property Rights and any Third-Party Claims based on Authorized User's (i) negligence or wilful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Authorized User may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defence thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 8 SETS FORTH AUTHORIZED USER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER'S LIABILITY UNDER THIS SECTION 8 EXCEED $100.
9. Limitations of Liability.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY TO AUTHORIZED USER ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO PROVIDER UNDER THE SAAS AGREEMENT IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100, WHICHEVER IS LESS.
10. Term and Termination.
(a) Term. The term of this Agreement shall begin upon the first date that you use or access the Services and shall terminate upon the earlier of the termination of the SaaS Agreement or the termination of this Agreement.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) This Agreement shall terminate upon termination of the SaaS Agreement;
(ii) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due pursuant to the SaaS Agreement, and such failure continues more than 10 days after Provider's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 5;
(iii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach;
(iv) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, liquidator or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; and
(v) Provider may terminate this Agreement for convenience, effective on written notice to Customer.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Authorized User shall immediately discontinue use of the Provider IP and, shall delete or destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. Upon termination, Provider shall have no further obligation with respect to Customer Data, and may delete Customer Data.
(d) Survival. This Section 10(d) and Sections 1, 5, 6, 7(b), 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
(a) Order of Precedence. In the event of any inconsistency between the statements made in the body of this Agreement, the SaaS Agreement, and any other documents incorporated herein by reference, the following order of precedence govern: (i) first, the SaaS Agreement; (ii) second, this Agreement; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (other than routine communications having no legal effect) (each, a "Notice") in writing and, (i) in the case of Provider, addressed to Provider at the address set forth in the preamble to this Agreement (or to such other address, including email addresses or messaging means via the Services, that may be designated by Provider from time to time), or (ii) in the case of Authorized User, to Customer in accordance with the SaaS Agreement. Notices sent in accordance with this Section will be conclusively deemed validly and effectively given: (a) on the date of receipt, if delivered by personal delivery, or by a nationally recognized same day or overnight courier (with all fees prepaid); (b) upon the sender's receipt of an acknowledgment from the intended recipient (such as by the "read receipt" function, as available, return email or other form of written acknowledgment), if delivered by email of a PDF or other platform-agnostic document; (c) when sent, if sent by facsimile (with confirmation of transmission) on the date of transmission if a Business Day or if not a Business Day or after 5:00 p.m. on the date of transmission, on the next following Business Day; or (d) on the fifth day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
(c) Force Majeure. In no event shall Provider be liable to Customer or any Authorized User, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider's reasonable control, including but not limited to acts of God, epidemics, pandemics, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendments and Modifications. Provider reserves the right in its sole discretion to revise and update these terms and conditions from time to time. Any and all such modifications are effective immediately upon posting and apply to all access to and continued use of the Services. Authorized User agrees to periodically review the terms and conditions in order to be aware of any such modifications and continued use shall be Authorized User's acceptance of such revised terms and conditions, effective immediately. The information and material on the Services may be changed, withdrawn, or terminated at any time in Pippin's sole discretion without notice. Provider will not be liable if, for any reason, all or any part of the Services is restricted to users or unavailable at any time or for any period.
(e) Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(g) Governing Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of British Columbia and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule of any jurisdiction.
(h) Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of British Columbia or the federal courts of Canada having subject matter jurisdiction, and each Party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
(i) Assignment. Authorized User may not assign or otherwise transfer any of its rights or delegate or otherwise transfer any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Provider may assign or otherwise transfer any of its rights or delegate or otherwise transfer any of its obligations hereunder, effective upon giving notice of such assignment to Customer. Any purported assignment, transfer, or delegation in violation of this Section will be null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(e), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Last updated: November 19, 2024
BY USING THE SERVICES (AS DEFINED BELOW) OR BY CLICKING TO ACCEPT THIS END USER LICENSE AGREEMENT (THIS "AGREEMENT"), YOU ACCEPT AND AGREE TO BE BOUND AND COMPLY WITH THIS AGREEMENT AND OUR PRIVACY POLICY, FOUND AT https://www.pippin-ai.com/privacy, INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THIS AGREEMENT OR THE PRIVACY POLICY, YOU MUST NOT ACCESS OR USE THE SERVICES.
BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU: ARE OF THE LEGAL AGE OF MAJORITY TO FORM A BINDING CONTRACT WITH THE PROVIDER; AND MEET ALL OF THE ELIGIBILITY REQUIREMENTS DISCUSSED HEREIN. IF YOU DO NOT MEET ALL OF THESE REQUIREMENTS, YOU MUST NOT ACCESS OR USE THE SERVICES.
This Agreement is made between PIPPIN AI CORPORATION, a corporation organized under the laws of British Columbia, having an office at 25th Floor, 666 Burrard Street, Vancouver, British Columbia V6C 2X8, Canada ("Provider") and YOU, as an Authorized User under the SaaS Agreement (as defined below) (each a "Party" and together the "Parties").
WHEREAS, Provider has entered into a Software as a Service Agreement (the "SaaS Agreement") for the Services with Customer (as defined below);
AND WHEREAS, Customer has made the Services available to the Authorized User, subject to the terms and conditions of the SaaS Agreement, this Agreement, and other terms or conditions that Customer and/or Provider may impose upon the Authorized User from time to time;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows:
1. Definitions.
(a) "Aggregated Statistics" means data and information related to Customer's (including Authorized User's) use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services, and all Intellectual Property Rights therein.
(b) "Authorized User" means you in your capacity as one of Customer's employees, consultants, contractors, real estate agents, residents, tenants, and owners as listed at Exhibit A to the SaaS Agreement: (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the SaaS Agreement; and (ii) for whom access to the Services has been purchased under the SaaS Agreement.
(c) "Confidential Information" has the meaning set forth in Section 5.
(d) "Customer" means the entity that makes the Services available to you as an Authorized User pursuant to the SaaS Agreement.
(e) "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or Authorized User through the Services.
(f) "Documentation" means Provider's user manuals, handbooks, and guides relating to the Services provided by Provider to Authorized User or Customer either electronically or in hard copy form, including any end user documentation relating to the Services available via the Services and/or on Provider's website.
(g) "Feedback" has the meaning set forth in Section 6(c).
(h) "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
(i) "Initial Term" has the meaning set forth in Section 10(a).
(j) "Intellectual Property Rights" means any right or protection existing from time to time in a specific jurisdiction, whether registered or not, under any patent law or other invention or discovery law, copyright law, performance or moral rights law, trade secret law, industrial design law, confidential information law (including breach of confidence), integrated circuit topography, trade-mark law, trade-name law, passing off, unfair competition law or other similar laws, and includes legislation by competent governmental authorities and judicial decisions under common law or equity, and for greater certainty includes the right to file any applications, and the right to claim for the same the priority rights derived from any applications filed under any treaty, convention, or any domestic laws of a country in which a prior application is filed.
(k) "Losses" has the meaning set forth in 8(b).
(l) "Notice" has the meaning set forth in Section 11(b).
(m) "Provider IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or Authorized User in connection with the foregoing, including all Intellectual Property Rights therein. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's (including Authorized User's) access to or use of the Services, but does not include Customer Data.
(n) "SaaS Agreement" has the meaning set forth in the recitals.
(o) "Service Suspension" has the meaning set forth in Section 2(g).
(p) "Services" means the software-as-a-service provided by Provider.
(q) "Term" has the meaning set forth in Section 10(a).
(r) "Third Party Claim" has the meaning set forth in Section 8(a)(i).
(s) "Third-Party Products" means any third-party products provided with or incorporated into the Services.
2. Access and Use.
(a) Provision of Access. Subject to the terms and conditions of this Agreement, Provider hereby grants Authorized User a right to access and use the Services during the Term. Such use is limited to Customer's internal use. Provider shall provide to Customer the means necessary to generate passwords and network links or connections to allow Authorized User to access the Services. Authorized User acknowledges that the quality of the Services, the response time or access to certain features of the Services may depend on the: (i) capabilities of the electronic communication network; and (ii) device by which Authorized User accesses and uses the Services, which shall be the responsibility of Authorized User and not the responsibility of Provider.
(b) Account Security. Any information used to access the Services by Authorized User, including any username or password, must be treated as confidential. Authorized User shall keep any such information secure and shall not disclose any such information to any other person or entity. Authorized User shall access and use the Services only on the electronic communication network and device provided to Authorized User or otherwise authorized by Customer for Authorized User to use for the purpose of accessing and using the Services. Authorized User understands that their account is personal and that Authorized User is responsible for any unauthorized access or use associated with their account.
(c) Privacy and Data Security. Provider may collect, use, and disclose personal information in accordance with its privacy policy, available at https://www.pippin-ai.com/privacy, which Provider may amend from time to time in its sole discretion, and as otherwise permitted or required by law. Provider may host the Services and/or store Customer Data in Canada, the United States, and/or such other jurisdictions identified to Customer from time to time by notice. In the event of any security issues arising in connection with the Services, Customer shall be responsible for notifying Authorized User and other affected parties; provided, however, that Provider retains the right (without any obligation) to do so at Customer's expense. Customer is responsible for obtaining all necessary consents for the collection, use, or disclosure of personal information via the Services. Customer and Authorized User must not provide or otherwise make any personal information available to Provider, via the Services or otherwise, without all necessary consents from each Authorized User in accordance with applicable laws, including for the purposes described in Provider's privacy policy.
(d) Documentation. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Authorized User a non-exclusive, non-sublicenseable, non-transferrable license to use the documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services by Authorized User.
(e) Use Restrictions. Authorized User shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Authorized User understands that their access to the Services may be revoked by Provider if Customer breaches the terms of the SaaS Agreement or if Authorized User breaches the terms of this Agreement or any other terms or instructions that Customer may impose upon Authorized User. Authorized User shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) use the Services in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage including: (A) power generation systems; (B) aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; (C) safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and (D) military or aerospace applications, weapons systems, or environments.
(f) Reservation of Rights. Provider reserves all rights not expressly granted to Authorized User in this Agreement or to Customer in the SaaS Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to any Authorized User or any third party any Intellectual Property Rights or other right, title, or interest in or to the Provider IP.
(g) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may suspend Authorized User's access to any portion or all of the Services if: (i) Customer breaches the SaaS Agreement; (ii) Customer suspends Authorized User's access to any portion or all of the Services; (iii) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP, (B) any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider, (C) any Authorized User is using the Provider IP for fraudulent or illegal activities, (D) subject to applicable Law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Provider's provision of the Services to any Authorized User is prohibited by applicable law; or (iv) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Authorized User to access the Services; (any such suspension described in subclause (i), (ii), (iii), or (iv), a "Service Suspension"). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Customer shall be responsible for communicating all such written notices to Authorized User. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or Authorized User may incur as a result of a Service Suspension. without limiting the generality of the foregoing, as between the Parties, AUTHORIZED USER IS RESPONSIBLE FOR ALL USES OF CUSTOMER DATA, INCLUDING ANY USE BY AUTHORIZED USER, INCLUDING MAKING BACKUPS OF CUSTOMER DATA ON A REGULAR BASIS.
(h) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Authorized User's use of the Services and collect and compile Aggregated Statistics. As between Provider and Authorized User, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Authorized User acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Authorized User agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law. For greater certainty, Authorized User hereby assigns to Provider all right, title, and interest, including all Intellectual Property Rights in and to the Aggregated Statistics.
(i) Artificial Intelligence. Provider may anonymize the Customer Data and use such anonymized information for any purpose, including for the purposes of improving the Provider IP, including by way of using such anonymized information as training data for artificial intelligence and/or machine learning apparatus and methods.
3. Customer Responsibilities.
(a) General. Authorized User is responsible and liable for all uses of the Services and Documentation, whether such access or use is permitted by or in violation of this Agreement.
(b) Third-Party Products. Provider may from time to time make Third-Party Products available to Authorized User. For the purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions made available to Authorized User and/or Customer from time to time. If Authorized User does not agree to abide by the applicable terms for any such Third-Party Products, then Authorized User shall not install or use such Third-Party Products.
(c) Validation. AUTHORIZED USER IS RESPONSIBLE FOR ALL USES OF THE SERVICES. THE SERVICES ARE NOT LEGAL ADVICE, TECHNICAL ADVICE, MEDICAL ADVICE, FINANCIAL ADVICE, OR ANY OTHER KIND OF ADVICE. THE SERVICES INCORPORATE ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING TECHNOLOGIES, INCLUDING GENERATIVE ARTIFICIAL INTELLIGENCE. RISKS OF SUCH TECHNOLOGIES INCLUDE INCOMPLETENESS, INCORRECTNESS, HALLUCINATION AND BIAS. AUTHORIZED USER MUST VALIDATE ALL OUTPUTS OF THE SERVICES, INCLUDING BY SEEKING PROFESSIONAL ADVICE AS NEEDED. AUTHORIZED USER MUST IMPLEMENT TECHNICAL, ADMINISTRATIVE, AND PHYSICAL SAFEGUARDS TO ENSURE THAT THE SERVICES ARE USED SAFELY AND IN A FAIR AND UNBIASED MANNER AND IN COMPLIANCE WITH ALL APPLICABLE LAWS, AND THAT INFORMATION OBTAINED VIA THE SERVICES, WHETHER OR NOT GENERATED BY GENERATIVE ARTIFICIAL INTELLIGENCE, ARE VALIDATED FOR CORRECTNESS, ACCURACY, SAFETY AND FAIRNESS. USE OF THE SERVICES BY AUTHORIZED USER IS AT AUTHORIZED USER'S SOLE RISK AND LIABILITY.
4. Service Levels and Support.
Provider has agreed to use commercially reasonable efforts to make the Services available in accordance with the service levels as set out in the SaaS Agreement. The access rights granted in this Agreement entitle Authorized User to the support services, if any, described from time to time on Provider's website located at https://www.pippin-ai.com, solely to the extent that Customer purchases support services.
5. Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly destroy or, at the disclosing Party's option, return to the disclosing Party, all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, the receiving Party shall not be required to return or destroy electronic backup copies of the disclosing Party's Confidential Information made in the ordinary course of business, provided that the receiving Party shall continue to be bound to treat such backup copies in accordance with this Agreement. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the effective date of this Agreement and will survive the termination or expiration of this Agreement.
6. Intellectual Property Ownership; Feedback.
(a) Provider IP. Authorized User acknowledges that, as between Authorized User and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Authorized User, on behalf of itself and Customer, hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer and make available the Service to Authorized User, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Authorized User sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Authorized User hereby assigns to Provider all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
7. Limited Warranty and Warranty Disclaimer.
(a) Provider warrants that the Services will conform in all material respects to the service levels as agreed to in the SaaS Agreement when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in the SaaS Agreement. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
(b) THE PROVIDER IP, INCLUDING THE SERVICES, ARE PROVIDED ON AN "AS IS", "WHERE IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS, AND PROVIDER HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR AUTHORIZED USER'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Third Party Claims and Indemnification.
(a) Third Party Claims.
(i) If Authorized User, Customer or any third party claims that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's Intellectual Property Rights or other rights, or if such a claim appears possible, Authorized User agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Authorized User to continue use the Services. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(ii) This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services by Customer and/or Authorized User in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; or (D) Third-Party Products.
(b) Authorized User Indemnification. Authorized User shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any losses, damages, liabilities, costs (including reasonable legal fees) ("Losses") incurred by Provider resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's Intellectual Property Rights and any Third-Party Claims based on Authorized User's (i) negligence or wilful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Authorized User may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defence thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 8 SETS FORTH AUTHORIZED USER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER'S LIABILITY UNDER THIS SECTION 8 EXCEED $100.
9. Limitations of Liability.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY TO AUTHORIZED USER ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO PROVIDER UNDER THE SAAS AGREEMENT IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100, WHICHEVER IS LESS.
10. Term and Termination.
(a) Term. The term of this Agreement shall begin upon the first date that you use or access the Services and shall terminate upon the earlier of the termination of the SaaS Agreement or the termination of this Agreement.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) This Agreement shall terminate upon termination of the SaaS Agreement;
(ii) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due pursuant to the SaaS Agreement, and such failure continues more than 10 days after Provider's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 5;
(iii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach;
(iv) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, liquidator or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; and
(v) Provider may terminate this Agreement for convenience, effective on written notice to Customer.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Authorized User shall immediately discontinue use of the Provider IP and, shall delete or destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. Upon termination, Provider shall have no further obligation with respect to Customer Data, and may delete Customer Data.
(d) Survival. This Section 10(d) and Sections 1, 5, 6, 7(b), 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
(a) Order of Precedence. In the event of any inconsistency between the statements made in the body of this Agreement, the SaaS Agreement, and any other documents incorporated herein by reference, the following order of precedence govern: (i) first, the SaaS Agreement; (ii) second, this Agreement; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (other than routine communications having no legal effect) (each, a "Notice") in writing and, (i) in the case of Provider, addressed to Provider at the address set forth in the preamble to this Agreement (or to such other address, including email addresses or messaging means via the Services, that may be designated by Provider from time to time), or (ii) in the case of Authorized User, to Customer in accordance with the SaaS Agreement. Notices sent in accordance with this Section will be conclusively deemed validly and effectively given: (a) on the date of receipt, if delivered by personal delivery, or by a nationally recognized same day or overnight courier (with all fees prepaid); (b) upon the sender's receipt of an acknowledgment from the intended recipient (such as by the "read receipt" function, as available, return email or other form of written acknowledgment), if delivered by email of a PDF or other platform-agnostic document; (c) when sent, if sent by facsimile (with confirmation of transmission) on the date of transmission if a Business Day or if not a Business Day or after 5:00 p.m. on the date of transmission, on the next following Business Day; or (d) on the fifth day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
(c) Force Majeure. In no event shall Provider be liable to Customer or any Authorized User, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider's reasonable control, including but not limited to acts of God, epidemics, pandemics, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendments and Modifications. Provider reserves the right in its sole discretion to revise and update these terms and conditions from time to time. Any and all such modifications are effective immediately upon posting and apply to all access to and continued use of the Services. Authorized User agrees to periodically review the terms and conditions in order to be aware of any such modifications and continued use shall be Authorized User's acceptance of such revised terms and conditions, effective immediately. The information and material on the Services may be changed, withdrawn, or terminated at any time in Pippin's sole discretion without notice. Provider will not be liable if, for any reason, all or any part of the Services is restricted to users or unavailable at any time or for any period.
(e) Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(g) Governing Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of British Columbia and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule of any jurisdiction.
(h) Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of British Columbia or the federal courts of Canada having subject matter jurisdiction, and each Party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
(i) Assignment. Authorized User may not assign or otherwise transfer any of its rights or delegate or otherwise transfer any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Provider may assign or otherwise transfer any of its rights or delegate or otherwise transfer any of its obligations hereunder, effective upon giving notice of such assignment to Customer. Any purported assignment, transfer, or delegation in violation of this Section will be null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(e), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.