GROUP SALES TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE (THESE “TERMS”) CAREFULLY. BY ACCEPTING AN ORDER OR OTHER AGREEMENT (INCLUDING A REGISTRATION PAGE) THAT INCORPORATES THESE TERMS (“ORDERING DOCUMENT”), CUSTOMER (AS DEFINED HEREIN) AGREES TO FOLLOW AND BE BOUND BY THESE TERMS. THESE TERMS TOGETHER WITH ALL ORDERING DOCUMENTS (AS SUCH ARE AMENDED, SUPPLEMENTED, OR REPLACED FROM TIME TO TIME) CONSTITUTES THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT”.
In consideration of the mutual promises contained herein, Customer and Group Sales (as defined herein) hereby agree to the following:
1.1 “Customer” means a person, other than an Authorized User (as defined herein), who is authorized by Group Sales to access the Services (as defined herein) pursuant to an Ordering Document.
1.2 “Customer Data” means any Confidential Information of Customer and any information regarding Customer’s Authorized Users provided to Group Sales in connection with this Agreement.
1.3 “Group Sales” means Group Sales Data Inc., a Canadian corporation with offices at 27 Halesia Dr., Toronto, ON M9W 6B6.
1.4 “Licensed Materials” means all information described in any Ordering Document, which will be published or otherwise made available by Group Sales to Customer, via the Platform or otherwise, under the Agreement.
1.5 “Platform” means the Group Sales standard software as a service offering that is to be used by Customer and hosted by Group Sales. The term “Platform” shall include any modifications, enhancements, integrations or related applications thereto, including any that are further described in any applicable Ordering Document.
- SCOPE. This Agreement governs Customer’s access to certain Licensed Materials delivered via the Platform, all as provided for in an Ordering Document. The Licensed Materials and the Platform are collectively referred to as the “Services”.
3.1 Access to Services. Group Sales will make the Services available to Customer pursuant to this Agreement during the Term (as defined herein), solely for the sales, marketing or business development activities of Customer. For greater certainty, the Customer may only access and use the Services for the following purposes (the “Permitted Purposes”): (a) to view the Licensed Materials; (b) to communicate with a person identified in the Licensed Materials (each such person, a “Licensed Materials Contact”); and (c) to export the Licensed Materials only as expressly permitted in the applicable Ordering Document. Unless otherwise provided in the applicable Order, the Services are purchased as subscriptions.
3.2 Authorized User Access to Services. Subject to any usage limits (including those quantities set forth in an Ordering Document), Customer may permit its employees, contractors or agents (“Authorized Users”) to access the Services for the Permitted Purposes in accordance with the Agreement.
3.3 Accounts. All users (including Authorized Users) of the Services must sign up for a Group Sales account (an “Account”). Authorized Users will submit the required registration-related information, as Group Sales may reasonably request, to the Platform. Customer is responsible for the creation, use and termination of, and for maintaining the confidentiality of all Authorized User log-in Account credentials and passwords (collectively “IDs”) and will immediately notify Group Sales of any unauthorized use of IDs or any other breach of security relating to the Services known to Customer. IDs cannot be shared or used by more than one Authorized User and Group Sales will not be liable for any activities undertaken by anyone using an Authorized User’s ID. Group Sales reserves the right, in its sole discretion, to change or disable any of the IDs used in connection with the Services where Group Sales suspects there has been an attempted or actual security breach or to ensure the security of the Services.
3.4 Restrictions. Customer will not, and will not permit any third party to, directly or indirectly: (a) access or use the Services, except for the Permitted Purposes; (b) allow any third party to access the Services, except as expressly permitted herein; (c) modify, adapt, alter or translate the Services; (d) sublicense, lease, sell, resell, rent, share, loan, distribute, transfer or otherwise commercially exploit the Services or allow the use of the Services on behalf of or for the benefit of any third party; (e) incorporate any of the Licensed Materials into Customer’s own products or services; (f) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform; (g) create derivative works based on the Services or access or use the Services to develop or create a competitive service or product; (h) attempt to circumvent any security device or feature of the Platform (including contractual service limits and quantities set out in an Ordering Document); (i) load or penetration test the Platform, except as expressly permitted; and (j) use the Services to store or transmit any virus, worm, trap door, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or program designed to permit unauthorized access to, or to erase or otherwise harm a party’s software, hardware, systems or data (“Malicious Code”).
3.5 Group Sales Responsibilities. Group Sales will: (a) make the Services available to Customer in accordance with the applicable Ordering Documents; (b) host the Services, provided that nothing herein shall be construed to require Group Sales to provide, or bear any responsibility, for any telecommunications or computer network hardware required by Customer or any Authorized User to access the Platform from the Internet; (c) provide the Services in accordance with laws and government regulations applicable to Group Sales in its provision of the Services; and (d) be responsible for the performance of Group Sales’ personnel (including employees, agents and contractors) and their compliance with Group Sales’ obligations under this Agreement.
3.6 Customer Responsibilities. Customer will: (a) ensure that any and all access and use of the Services is in compliance with this Agreement and laws, regulations and governmental or other regulatory bodies’ rules and policies applicable to Customer (including applicable privacy laws, anti-spam laws, and telemarketing laws); (b) be responsible for use of the Services by Authorized Users; (c) provide the information and assistance (if any) specified in the applicable Ordering Document to enable Group Sales to provide the Services to Customer; and (d) be solely responsible for any communications between Customer or Authorized User and any Licensed Materials Contact. For greater certainty, if Customer uses the Services for the purposes of communicating with a Licensed Materials Contact, Customer acknowledges and agrees that (i) Customer (and not Group Sales) is responsible for complying with laws applicable to any such communication (including privacy laws, anti-spam laws, and telemarketing laws), and (ii) the fact that information about a Licensed Materials Contact is included in the Services does not manifest any consent by that person to receive such communications from Customer.
- THIRD PARTY SERVICES. Group Sales or third parties may make available to Customer for purchase access to or use of third party software services, applications or functionality that link to, interoperate with, are used in conjunction with, or are incorporated into and resold through the Services (“Third Party Services”). Customer acknowledges and agrees that Group Sales does not own or control such Third Party Services. The Third Party Services are made available as a convenience only and are not part of the “Services” or subject to any of the warranties (whether express or implied), service commitments or other obligations with respect to Services hereunder. Moreover, the Third Party Services providers are not partners, agents or representatives of Group Sales and it is up to Customer to decide whether to use or enable these Third Party Services and Customer must rely on its own skill and judgement in electing to do business with such third parties. Group Sales has no obligation to monitor or maintain Third Party Services and may disable or restrict access to any Third Party Services at any time without notice. Access to and use of any Third Party Services, including the availability thereof and uptimes related thereto, is at Customer’s own risk and is solely determined by the relevant Third Party Services provider and is subject to such additional terms and conditions applicable to such Third Party Services. Where applicable, Customer is solely responsible for maintaining appropriate accounts in good standing with the Third Party Services providers. Group Sales will have no liability or other obligation to Customer for such Third Party Services or Customer Data exported to a Third Party Service, including but not limited to any unavailability of any Third Party Services, or any Third Party Service provider’s decision to discontinue, suspend or terminate any Third Party Services.
5.1 Rights in the Services. Subject to the limited rights expressly granted herein and excluding any Customer Data, (a) no other rights are granted to Customer hereunder and Group Sales owns, retains and reserves all right, title and interest (including all copyright, patent, trade secrets and other intellectual property rights, whether registered or unregistered) in the Services, including modifications, improvements, developments, enhancements and derivative works howsoever created, even if unauthorized or on the request of or based on any Customer Data or any suggestion, idea or feedback, from Customer; and (b) no express or implied licence or right of any kind is granted to Customer regarding the Services, or any portion thereof, including any right to obtain possession of any source code, data or other technical material relating to the Services. Customer acknowledges that it is obtaining only a limited right to access and use the Services (including, for greater certainty, the Licensed Materials).
5.2 Licence by Group Sales for Licensed Materials. Subject to Customer’s compliance with this Agreement, Group Sales grants to Customer a non-exclusive, non-sublicensable, non-transferable, revocable, limited-purpose licence to use the Licensed Materials solely for the Permitted Purposes, and solely for the Term. Except as expressly permitted in this Agreement, Customer is not permitted to download, copy or otherwise store any Licensed Materials. Upon expiration or termination of this Agreement, Customer will, in accordance with Section 11.3, cease access and use of and destroy all Licensed Materials (including all copies and information obtained from such Licensed Materials) then in Customer’s possession or control.
5.3 Publicity. During the Term, the parties hereby agree that (a) Group Sales may use Customer’s name and logo to identify Customer as a customer who uses the Services; and (b) Customer may use Group Sales’ name and logo to identify Group Sales in relation to Customer’s success in using the Services.
5.4 Usage Data/Statistical Data. To deliver, support, develop, test and improve the Services, Group Sales may collect, store, analyze and interpret data elements associated with or provided in the use of the Services. Group Sales will own all rights in such data and any algorithm, computational or cumulative results of such data. Group Sales may use such data for any purpose (including providing the Services, and auditing and improving the Services), and may provide it to third parties or compile it with other data to derive statistical and performance information, provided that it will aggregate and anonymize such data so that Customer or any person cannot be identified as the source of such data.
- CONFIDENTIALITY, PRIVACY AND SECURITY.
6.1 Confidentiality. During the Term, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) non-public technical, business, marketing, proprietary, trade secret, personal or other information in any form relating to the Disclosing Party’s business designated or reasonably understood to be confidential (“Confidential Information”). The Receiving Party agrees that it take reasonable precautions to protect the Confidential Information and will not use, or disclose it to any third party, except as expressly permitted in the Agreement. Access to Confidential Information will be limited to those of the Receiving Party’s employees and contractors who need such access for purposes consistent with the Agreement and who owe the Receiving Party an obligation of confidentiality with terms consistent with these Terms. Confidential Information excludes information that the Receiving Party can establish: (a) was known to it prior to receiving the same from the Disclosing Party, free of any restrictions; (b) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; (c) is acquired from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is necessary to enforce its rights under the Agreement or is required by law or pursuant to a court or regulatory order, provided that (if permitted by law) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks a protective order.
6.2 Customer Privacy Obligations. Customer is responsible for compliance with all data privacy, data protection and data security laws applicable to Customer and/or its use of the Services.
6.3 Prohibited Data. Customer will not upload to the Services or otherwise submit or make accessible to Group Sales any financial account identifiers (e.g., credit card numbers or bank account numbers), government issued identifiers (e.g., social insurance numbers, health card numbers) or other types of sensitive data that is subject to specific or elevated data protection requirements (“Prohibited Data”), unless Group Sales has expressly agreed that it can comply with such requirements.
7.1 Fees. Customer will pay Group Sales all fees stated in the Ordering Documents (the “Fees”) in accordance with the payment terms.
7.2 Payment Terms.
(a) Group Sales (or a third party payment processor) will charge Customer on a monthly basis for all Fees due with respect to the Services by credit card or by issuing an invoice. All amounts are due and payable immediately, unless otherwise specified in the applicable Ordering Document. Customer will be permitted to access the Services only upon receipt of payment by Group Sales.
(b) Where Customer pays the Fees by credit card, Customer’s payments may be processed on behalf of Group Sales by a third party payment processor using their secure site. For greater certainty, where a third party payment processor is used, (i) Customer’s payment information will be sent to the third party payment processor; and (ii) personal information that Customer submits during the payment process is subject to the Group Sales Privacy Statement found at groupsales.io/privacy (“Privacy Statement”). Group Sales reserves the right at any time to reject, cancel or terminate any transaction, even if any payment in respect of any such transaction is accepted by Group Sales’ third party payment processor.
(c) All Fees are non-cancellable and non-refundable, except as expressly specified in the Agreement. Unless otherwise expressly agreed by the parties in writing, any Fees paid will not offset any Fees due under any other Ordering Document. Non-payment or late payment of Fees which are not the subject of a written good faith dispute is a material breach of these Terms and, following the expiry of five (5) days after written notice has been delivered to Customer, Group Sales shall be entitled to withhold performance and discontinue the Services until all amounts due are paid in full. If any undisputed amount is overdue, those amounts may accrue interest at the rate of 1.5% per month of the outstanding balance or the maximum permitted by law, whichever is less, plus all expenses of collection.
7.3 Taxes. The Fees are exclusive of, and Customer is responsible for payment of, all taxes, levies, duties, tariffs, assessments, export and import fees, or other similar local, state, provincial, federal or foreign jurisdiction governmental assessments, including sales and use taxes, value-added taxes, goods and services taxes imposed by any jurisdiction arising from the payment of the Fees or Group Sales’ provision of the Services, except taxes based on Group Sales’ income, property or employees (collectively, the “Taxes”). If Group Sales has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 7.3, Group Sales will invoice Customer and Customer will pay that amount unless, prior to Customer’s purchase, Customer provides Group Sales with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will make all payments of Fees to Group Sales without reduction for any withholding taxes, except as required by law, and any such taxes imposed on payments of Fees to Group Sales will be Customer’s sole responsibility and Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, Group Sales receives an amount equal to the amount it would have received had no such deductions or withholding been made. Further, Customer will provide Group Sales with official receipts issued by the appropriate taxing authority, or such other evidence as Group Sales may reasonably request, to establish that such taxes have been paid.
- REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.
8.1 Group Sales. Group Sales represents and warrants to Customer that: (a) it has the power and authority to enter into the Agreement; (b) the Services and their use in accordance with the Agreement, in and of themselves, will not infringe any third party intellectual property rights; and (c) it shall use commercially reasonable efforts, including deploying up-to-date anti-virus software on its servers, to protect Customer from receiving from the Services any Malicious Code.
8.2 Remedies for Nonconformance. In the event of Group Sales’ nonconformance with the warranties provided in Section 8.1, Customer will notify Group Sales in writing of such nonconformance within thirty (30) days of the nonconformance and Group Sales shall (a) use commercially reasonable efforts to make available to Customer conforming Services for the warranty in Section 8.1(c) and if it fails to do so within thirty (30) days of the notice and the nonconformity materially diminishes the value of the Services, Customer shall have a right to terminate the nonconforming Service in accordance with Section 11.2; (b) for the warranty in Section 8.1(b), Customer shall invoke the provisions of Group Sales’ infringement indemnity in Section 9.1. The foregoing remedies shall be Customer’s sole and exclusive remedies, except with respect to Section 8.1(c).
8.3 Customer. Customer represents and warrants to Group Sales that: (a) it has the power and authority to enter into the Agreement; (b) the Customer Data shall not contain any Malicious Code; (c) the Customer Data shall not infringe any copyright, trademark or patent right or misappropriate any trade secret; and (d) it will comply with applicable law in using the Services, including contacting Licensed Materials Contacts in accordance with applicable law (including privacy laws, anti-spam laws, and telemarketing laws).
8.4 Disclaimer. THE WARRANTIES SET FORTH IN SECTION 8.1 ARE MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICES ARE PROVIDED “AS IS,” AND GROUP SALES MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES. GROUP SALES DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL CORRECT ALL DEFECTS OR PREVENT UNAUTHORIZED ACCESS. GROUP SALES DOES NOT WARRANT THAT THE SERVICES WILL BE COMPATIBLE WITH CUSTOMER’S COMPUTER SYSTEMS OR ANY INTERNET TECHNOLOGY. GROUP SALES DISCLAIMS ALL FAILURES, DELAYS AND OTHER PROBLEMS INHERENT WITH THE INTERNET AND IS NOT RESPONSIBLE FOR ANY CUSTOMER DATA DELAYED, LOST, ALTERED, INTERCEPTED OR STORED DURING THE TRANSMISSION ACROSS NETWORKS NOT OWNED OR CONTROLLED BY GROUP SALES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
9.1 By Group Sales. Group Sales shall defend Customer against any third party claims brought against Customer alleging that the use of the Services as permitted hereunder infringes any copyright, trademark or patent right of such third party, and Group Sales shall pay any losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim (“Costs”). If any portion of the Services becomes, or in Group Sales’ opinion is likely to become, the subject of a claim of infringement, Group Sales may, at Group Sales’ option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that the Services become non-infringing; or (d) terminate the Agreement or the applicable Ordering Document, and refund any Fees pre-paid by Customer to Group Sales for Services from the effective date of termination to the end of the Term, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, Group Sales shall have no obligation under this Section 9.1 or otherwise with respect to any infringement claim based upon any (i) use of the Services not in accordance with this Agreement; (ii) use of the Services in combination with other products, equipment, software or data not supplied by Group Sales; or (iii) modification of the Services by any person other than Group Sales or its authorized agents. This Section 9.1 states the sole and exclusive remedy of Customer and the entire liability of Group Sales, and any of the officers, directors, employees, shareholders, contractors or representatives of Group Sales, for claims and actions described in this Section 9.1.
9.2 By Customer. Customer shall defend Group Sales against any third party claims brought against Group Sales alleging (a) breach of Section 3.4, 3.6, and 6; or (b) Customer’s use of the Services, other than as authorized in the Agreement, violates applicable law or infringes the intellectual property, privacy or other rights of such third party, and Customer shall pay the Costs. This Section 9.2 states the sole and exclusive remedy of Group Sales and the entire liability of Customer, and any of the officers, directors, employees, shareholders, contractors or representatives of Customer, for the claims and actions described in this Section 9.2.
9.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party promptly notifying the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (b) the indemnifying party having sole control of the defense or settlement of any claim or suit (provided the indemnifying party may not settle any claim without the indemnified party’s consent unless it unconditionally releases the indemnified party of all liability); and (c) the indemnified party (at the indemnifying party’s expense) reasonably cooperating with the indemnifying party to facilitate the settlement or defense of any claim or suit.
9.4 General. Indemnification by either party under the Agreement may be reduced to the extent of loss actually proven as directly attributable to the breach of the Agreement, negligence or willful misconduct of the other party.
- LIMITATION OF LIABILITY. GROUP SALES’ MAXIMUM AGGREGATE LIABILITY TO CUSTOMER AS A RESULT OF ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT, WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO GROUP SALES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE FIRST EVENT GIVING RISE TO THE LIABILITY OCCURRED. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ITS PERFORMANCE HEREUNDER, WHETHER THE ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS SECTION 10 WILL OPERATE TO EXCLUDE OR RESTRICT GROUP SALES’ LIABILITY (IF ANY) TO CUSTOMER FOR ANY MATTER FOR WHICH IT IS NOT PERMITTED BY LAW TO EXCLUDE OR LIMIT ITS LIABILITY, INCLUDING DEATH OR PERSONAL INJURY RESULTING FROM GROUP SALES’ NEGLIGENCE.
- TERM AND TERMINATION.
11.1 Term. The initial term of the Agreement is specified in the Ordering Document (“Initial Term”). Unless an Ordering Document specifies otherwise, the Agreement will automatically renew for successive periods equal to the length of the Initial Term (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides notice to the other party at any time prior to the end of the then-current term.
11.2 Termination. Either party may, immediately upon written notice to the other party, terminate the Agreement (including all applicable Service Orders) if the other party: (a) where curable, fails to cure any material breach of the Agreement within thirty (30) days after written notice of such breach; or (b) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within thirty (30) days thereafter).
11.3 Effects of Termination. Immediately upon termination of the Agreement and any Ordering Document, (a) all applicable rights granted to either party shall terminate; (b) Customer will cease to use the applicable Services; and (c) Customer will destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials (whether in hard copy or electronic form) and, upon request, an officer of Customer will certify the same. Termination shall not relieve Customer’s obligation to pay all undisputed charges accrued and payable before the effective date of termination.
11.4 Suspension Rights. In addition to its other rights under the Agreement, Group Sales may, in its sole discretion, immediately suspend Customer’s access to the Services, until the situation giving rise to the suspension has been remedied to Group Sales’ satisfaction, where: (a) Customer’s use of the Services poses a reasonable risk of harm or liability to Group Sales or any third party and Customer is not taking appropriate action; (b) there has been a violation of Section 3.4, 3.6, or 6; (c) Customer is using the Services in violation of applicable law and/or fails to cooperate with Group Sales’ investigation into any such alleged violation; (d) there has been an event of non-payment by Customer as contemplated in Section 7.2(c); or (e) a suspension is required by applicable law or governmental authority. Any such suspension by Group Sales shall not relieve Customer of any of its payment obligations hereunder. Where reasonably practicable in the circumstances and unless prohibited by law, Group Sales will, prior to suspending the Services, inform Customer of the concern as soon as reasonably possible.
- WAIVER OF JURY TRIAL AND CLASS ACTION RIGHTS. WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THIS AGREEMENT: (A) CUSTOMER HEREBY EXPRESSLY GIVES UP ITS RIGHT TO HAVE A TRIAL BY JURY; AND (B) CUSTOMER HEREBY EXPRESSLY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
13.1 Export Compliance. The Services, other Group Sales technology, and derivatives of them may be subject to export laws and regulations of Canada, the United States and other jurisdictions. Customer represents that it is not named on any Canadian or U.S. government denied-party list. Customer may not access or use the Services in a country named on Canada’s Area Control List under Canada’s Export and Import Permits Act, in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea), by persons or entities prohibited from receiving U.S. exports, or in violation of any Canadian or U.S. export law or regulation.
13.2 Notice. Any notice or other communication provided under the Agreement will be effective upon electronic delivery via email to the applicable email address for Group Sales or Customer set forth in the applicable Ordering Document. A party may change its notice designation by notice in writing to the other party.
13.3 Governing Law. The Agreement has been made in and shall be construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles.
13.4 Arbitration. Any dispute or claim arising out of or relating to the Agreement will be referred to and finally resolved by arbitration under the Arbitration Act, 1991 (Ontario), as amended from time to time. The place of arbitration shall be Toronto, Ontario, Canada and the language of the arbitration shall be English. The number of arbitrators shall be one. The fees and expenses of the arbitrator will be borne equally between the parties. The arbitrator may order interest on any award and the arbitrator may award costs to either party. In the absence of any such award of costs, each of the parties will bear its own costs of the arbitration. Customer agrees that good faith negotiations and arbitration will all be without recourse to the courts and that the award of the arbitrator will be final and binding, except that: (a) either party may appeal an arbitration award to the courts of Ontario on a question of law; and (b) either party may apply to the courts of Ontario for an interim measure of protection or for any order for equitable relief which the arbitrator does not have the jurisdiction to provide.
13.5 Assignment. Neither party shall assign the Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign the Agreement to any affiliate or to its successor in connection with any transaction or series of transactions pursuant to which all or a part of the assigning party’s business (or the business which is the subject matter of the Agreement) is assigned to, or otherwise results in forming all or part of the business of such entity, whether by way of reorganization, merger, consolidation, amalgamation, arrangement, contribution, transfer, sale, change in control or otherwise by operation of law, and provided it promptly notifies the non-assigning party in writing of the assignment and the assignee agrees in writing to be bound by the terms of the Agreement and assume the obligations of the assignor under the Agreement pursuant to this Section 13.5. The Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
13.6 Severability; Waiver. In the event any provision of the Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect. No delay or omission to exercise any right or remedy by either party hereunder shall constitute a waiver of that right. No waiver of any provision of the Agreement shall be valid unless in writing and signed by the waiving party.
13.7 Survival. Those provisions of the Agreement that by their terms survive, or by their nature are intended to survive the termination of the Agreement, will survive any termination of the Agreement and remain in full force and effect.
13.8 Entire Agreement. The Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes any prior or contemporaneous understandings or communications (oral or written) regarding such subject matter. In the event of a conflict between the terms in an Ordering Document and these Terms, the terms contained in these Terms shall control unless otherwise expressly stated in the Ordering Document that it supersedes particular language in these Terms. The Agreement may be modified only by a written amendment executed by an authorized representative of each party, except that Group Sales may propose updates or amendments to these Terms at any time upon notice to Customer in accordance with Section 13.2. Such proposed amendment will be deemed accepted and become part of this Agreement one week after the date that such notice is given unless Customer informs Group Sales that it does not accept such amendment. Notwithstanding the foregoing, the Privacy Statement may be amended, supplemented or replaced from time to time by Group Sales in its sole discretion.
13.9 Interpretation. In the Agreement, (a) words importing the singular number only shall include the plural and vice versa and words importing the masculine gender shall include the feminine; (b) the headings are intended solely for convenience of reference and will be given no effect in the interpretation or construction of the Agreement; and (c) wherever the words “include”, “includes” or “including” are used, they shall be deemed to be followed by the words “without limitation” and the words following “include”, “includes”, or “including” shall not be considered to set forth an exhaustive list.