Software Terms and Conditions
Please read the following terms of use (the "Terms") carefully which govern use of the services made available by 678595 BC Inc. ("The Number", "we", "us") to subscribers ("Customer", "you") who have entered into one or more software-as-a-service order forms ("Order Forms") with The Number subject to these Terms. Together these Terms, The Number Privacy Policy, The Number Copyright Policy, The Number Data Processing Addendum and each Order Form entered into by Customer constitute the "Agreement" between Customer and The Number.
IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICES. IF YOU ACCESS OR USE THE SERVICES, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS WHICH FORM A LEGAL AGREEMENT BETWEEN YOU AND The Number AND ITS SUCCESSORS AND ASSIGNS.
IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
1. SERVICES, LICENSE GRANT AND RESTRICTIONS
1.1 SaaS Subscriptions
Subscription services will be deemed made available on the "Start Date" (stated in the Order Form), regardless of when you start using all or part of the services. You may need to create an account, upload assets, or provide certain information in order to start using the services. We will provide your users access to use the Service during the subscription term as described in this Agreement and the applicable Order Form.
1.2 Software License Grant
Subject to the terms and conditions of this Agreement, The Number grants Customer a non-exclusive, non-transferable license to access and use the features of the Service(s) as stated in your Order Form.
1.3 Restrictions
Customer shall use the Services solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Services, or any component of the same or content, scripts, methodologies, code or other know-how and intellectual property made available by The Number (collectively "The Number IP") available to any third party, unless otherwise permitted by this Agreement. Customer shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on The Number IP except to the extent expressly agreed upon in writing by Customer or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Services; (c) remove any proprietary notices, labels, or marks from the Services or The Number IP; (d) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services; or (e) access or use the Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Services.
Customer acknowledges that Customer acquires absolutely no rights or licenses to the Services or The Number IP other than the limited right to use the Services and The Number IP in accordance with the terms and conditions of this Agreement. All other use is strictly prohibited.
1.4 Privacy & Security
Personal information provided to us by Customer through the Service (whether on registration, through contact forms, to create The Number accounts or otherwise), is subject to The Number's Privacy Policy. In addition, please be aware that because of the insecure nature of the Internet, privacy in communications cannot be guaranteed. While reasonable commercial efforts to include security features in the Services to protect the identities and the information transmitted using the Services have been taken by The Number, the associated risks must be considered before transmitting confidential, personal or other information with the Services. The Number may at times send emails to one or more email addresses provided by Customer or Customer's users to The Number as a part of creating a The Number account or other associated The Number services.
1.5. Service Limitations
The Number will not be responsible for any lost data due to server crashes or other events outside The Number's reasonable control.
2. PAYMENT TERMS AND TAXES
2.1. Payment Term
In consideration for the receipt of the Services and the licenses and other consideration granted hereunder, Customer shall pay The Number the properly due Fees specified in the applicable Order Form. Fees for the Services will be invoiced annually in advance unless otherwise provided on the applicable Order Form. Unless otherwise stated, all payments shall be made to The Number within thirty (30) calendar days after receipt of the invoice.
2.2. Invoicing and Payment of Taxes
All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Customer. Any such taxes that are imposed shall be the sole responsibility of Customer.
2.3. Overdue Payments
Any amounts properly due and not paid by the Customer by the due date will accrue late charges each month at the rate of one and a half percent (1.5%.) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
2.4. Suspension of Services
If Customer does not pay a properly rendered invoice within thirty (30) days of the Customer's receipt of a written notice from The Number that the amount is overdue, in addition to any of its other rights or remedies, The Number reserves the right to suspend the Services provided to Customer until such amounts are paid in full.
2.5. Changes to Fees
The Number may change the fees for the Services from time to time which fee change will take effect from the next billing cycle.
3. PROPRIETARY RIGHTS, CONTENT MODERATION AND PRODUCT SUGGESTIONS
3.1. Ownership of the Services and The Number IP
The Services and The Number IP are proprietary to The Number and its licensors and are protected by copyright and other intellectual property laws. All right, title and interest, including all copyright and other intellectual property rights, in and to the Services and The Number IP are owned by The Number or its licensors. Except for the rights and licenses granted in this Agreement, Customer acknowledges and agrees that any and all intellectual property rights to or arising from the software and technology used to provide the Services are and shall remain the exclusive property of The Number and its licensors. Nothing in this Agreement is intended to transfer any such intellectual property rights to, or to vest any such intellectual property rights in, Customer. Customer is only entitled to the limited use of the intellectual property rights granted to Customer in this Agreement. Customer will not take any action to jeopardize, limit or interfere with The Number's intellectual property rights. Any unauthorized use of The Number's intellectual property rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
3.2. Customer Content Responsibility
As between Customer and The Number, Customer and its licensors own and retain ownership of any original content that Customer provides, stores and processes through any of the Services ("Customer Content"). Customer hereby grants The Number a worldwide, royalty-free, and non-exclusive license during the term of this Agreement to access Customer Content in order to provide the Services, including storing, hosting and management of such content (the "Content License"). Customer understands that The Number, in performing the required technical steps to provide the Services, may (a) transmit or distribute Customer Content over various public or private networks and in various media; and (b) make such changes to Customer Content as are necessary to conform and adapt that Customer Content to the technical requirements of connecting networks, devices, Services or media. Customer confirms and warrants to The Number that Customer has all the rights, power and authority necessary to grant the above Content License and that use of the Customer Content in the manner contemplated will not breach the rights of any third party.
Customer Content. Customer is responsible for any and all Customer Content, its use of UGC and for obtaining all necessary licenses, permissions and consents to enable all material comprising Customer Content to be made available to and used by The Number for The Number to in the course of providing the Services to Customer. For greater certainty, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content and UGC; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify The Number promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Services.
3.3. UGC
All third party photographs, images, materials, descriptions, content, videos, audio files, text files, stories, information, code, or other content, trademarks, intellectual property, handles or other data ("UGC") that is accessed by Customer through use of the Services shall be retained by the applicable third party rights holder and subject to the rights of such third party and any applicable third party terms and conditions (e.g. Facebook, Twitter, Instagram, Localhood etc.) governing the use or access to such UGC. Customer acknowledges that The Number must abide by the applicable rules and regulations of the social networks from which UGC is pulled through those networks and accordingly, use and availability of content from third party social networks is subject to change at any time based on the permissions granted to The Number. Customer acknowledges and agrees that Customer shall be solely liable for the licensing, clearance and use of any such UGC in connection with Customer's business and the Customer's website(s) including without limitation, any copyrights, trademarks, right of privacy or publicity or other rights and compliance with any applicable third party terms and conditions.
3.4. Content Disclaimers
The Number does not guarantee the accuracy, quality, appropriateness, or fitness for any purpose of any content transmitted on or through the Services, including Customer Content or UGC. Customer acknowledges that the Services simply act as conduits for facilitating consumer engagement through the publication, dissemination, and making available of Customer Content and UGC, and that all content posted on, transmitted through, or linked through the Services is the sole responsibility of the user from whom the content originated. Customer therefore acknowledges and agrees that:
- The Number does not control, and is not responsible for, content made available through the Services;
- The Number reserves the right to review and delete any content (including Customer Content or UGC) at any time, in its sole discretion, for any reason, including without limitation, any determination by The Number in its sole judgment, that such content violates this Agreement, third party rights or any applicable laws;
- The Number has no obligation to screen, preview, censor, or alter any content;
- by using the Services, Customer may be exposed to content that is inaccurate, misleading or offensive; and
- Customer must evaluate and make Customer's own judgment, and bear all risks associated with, the use of any content.
By using the Services, Customer agrees that it is solely Customer's responsibility to evaluate the risks associated with the use, accuracy, usefulness, completeness, and appropriateness of the Services, and the content they may contain, or to which they may provide or facilitate access, from time to time. Under no circumstances will The Number be liable to Customer in any way for any content, including but not limited to Customer Content or UGC, that contains any errors, omissions, defamatory statements, or confidential or private information (including personal and health information), for any loss or damage of any kind incurred as a result of the use of any content created, submitted, accessed, transmitted, or otherwise made available on, through or in association with the Services, or for the removal of any content from the Services for any reason. For clarity, and without limiting the generality of the foregoing, Customer acknowledges and agrees that the inclusion of any content on, or the making available of any content through, the Services does not imply The Number's endorsement of such content, and that The Number does not make any claim as to the accuracy or legality of any such content.
3.5. Privacy Responsibilities
Customer shall be solely responsible for compliance with applicable data protection and privacy laws in its collection, use and storage of any personally identifiable information via the Customer CMS or other properties.
3.6. Removal of Content by Customer
Customer may remove any Customer Content or UGC from the Services at any time through the functionality provided by the Services. Customer understands and agrees that The Number may retain, but not display, distribute or perform server copies of any Customer Content or UGC that has been removed or deleted. Customer Content or UGC that may have been copied or used for a derivative work may still be visible (including without limitation any content that may have been created by other authorized users). Customer must remove all Customer Content and UGC if Customer no longer has the rights required by this Agreement. In addition, Customer acknowledges that any content made available to the public may remain available on the Internet and in third party repositories after termination or expiration of this Agreement. The Number will have no responsibility for taking down or requiring the removal by any third party of any content made available to the public as a result of Customer's use of the Services.
3.7. Suggestions and Machine Learning
The Number shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Services. Notwithstanding anything to the contrary, during the Term, The Number shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation: data derived from Customer's inputs, selections, actions, training and interactions in relation to the Service and Software (the "Collected Data"); and machine learning models, learned elements, biases, attributes, attribute transformations, weights and other data or works derived from the Customer Data or Collected Data (the "Learned Elements"). The Number shall be the exclusive owner of all intellectual property rights in such Collected Data and Learned Elements and will be free to use Collected Data and Learned Elements to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other The Number offerings, provided that the Collected Data and Learned Elements do not contain any Confidential Information or Personal Information of Customer or identify Customer.
4. CONFIDENTIALITY
4.1. Definition of Confidential Information
As used herein, "Confidential Information" means all confidential and proprietary information of a party (the "Disclosing Party") disclosed to the other party (the "Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
4.2. Obligations
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care)
4.3. Compelled Disclosure
If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
4.4. Remedies
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
5. WARRANTIES, DISCLAIMER AND LIMITATION OF LIABILITY
5.1. Representations, Warranties and Covenants by Each Party
Each party represents, warrants and covenants to the other party that: (i) it is an entity, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (iv) it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and business-like manner.
5.2. The Number Representations, Warranties and Covenants
The Number represents, warrants and covenants to Customer that during the Term (as defined below) it will provide the Services in a workmanlike, professional manner, at the time of initial availability to Customer there are no known viruses or destructive code in The Number Services and The Number IP does not, to The Number's knowledge, infringe any third party intellectual property rights.
5.3. Customer Representations, Warranties and Covenants
Customer represents, warrants and covenants to The Number that: (a) Customer is either the owner or the authorized licensor of all Customer Content, Customer has all rights necessary to provide The Number with the Content License for use in accordance with the terms of this Agreement, and no further payments to or permissions from any third party are required in order for The Number to exercise its rights under the Content License; (b) The Number's use of the Customer Content in accordance with the terms of this Agreement will not violate the rights of any third party, including without limitation, any trademark, trade name, patent, copyright, literary, artistic, dramatic, moral, personal, private, civil or property right, or right of privacy or publicity, or any other right of, or defame, any third party; (c) Customer's use of UGC will not violate any applicable laws, rules or regulations, including without limitation any intellectual property, privacy and/or publicity rights and that if Customer Content is subject to third party proprietary rights, Customer has all necessary licenses, rights, consents and permissions to publish the Customer Content and grant the Content License, including permission from any persons appearing in Customer Content; and (d) Customer will not use the Services to upload, post, email or otherwise transmit or link to any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of anyone's privacy, hateful, fraudulent, pornographic, profane, offensive, or otherwise objectionable, or that discloses personal or private matters concerning any person, restricts or inhibits any other person from using or enjoying any of the Services, expresses or implies that any statements Customer makes or actions Customer takes are endorsed by The Number or that indicates that Customer or any of its authorized users is an employee or representative of The Number, or may expose The Number or any of its other customers or users to any harm or liability of any type. Without limiting the generality of the foregoing, Customer represents, warrants and covenants that Customer will use the Services and The Number IP for lawful purposes only and in a manner consistent with all applicable local, provincial, state, national or international laws, rules and regulations including all intellectual property laws applicable to Customer Content and use of UGC. Without limiting the foregoing, Customer shall comply with The Number's Copyright Policy which can be found here: The Number.com/copyright.
5.4. Release
Customer hereby releases, discharges and agrees to hold The Number, and any person acting on its behalf, harmless from any liability related in any way to Customer's use or distribution of Customer Content or UGC.
5.5. DISCLAIMER OF IMPLIED WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND The Number IP ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, AND The Number, ITS LICENSORS AND PARTNERS DISCLAIM ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR COLLATERAL, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER DISABLING DEVICES, ARE ACCURATE, OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, The Number IS NOT RESPONSIBLE FOR ANY ERRORS IN THE CONTENT DELIVERED USING The Number IP OR SERVICES. CUSTOMER ACKNOWLEDGES THAT The Number HAS NO CONTROL OVER UGC OR THIRD PARTY SITES. THE USE OR PERFORMANCE OF THE SERVICES OR UGC IS AT CUSTOMER'S OWN RISK AND AT THE RISK OF ANY USERS.
6. TERM AND TERMINATION
6.1. Term
The term of this Agreement (the "Term") will commence on the start date ("Start Date") specified in the initial Order Form between The Number and Customer, and will continue for the period of time set out in such Order Form (or such later date set out in any subsequent Order Form). The Term will automatically renew for subsequent periods of time equal to the initial term, unless either party notifies the other party in writing of its intention not to renew at least thirty (30) days prior to the end of the then-current term.
6.2. Termination for Cause
Either party may terminate this Agreement if the other party materially breaches any of the terms or conditions of this Agreement and fails to remedy such breach within thirty (30) days' notice of such breach, or immediately on written notice in the case of nonpayment by Customer. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
6.3. Effect of Termination
Upon any termination, The Number will make all Customer Content available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter The Number may, but is not obligated to, delete stored Customer Content. After the data retrieval period, Customer shall not access the Services provided by The Number.
6.4. Survival
All sections of this Agreement which by their nature should survive termination or expiration will survive such termination or expiration, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. CHANGES TO SOFTWARE, SERVICES AND AGREEMENT
7.1. Updates to these Terms and Conditions
The Number reserves the right to modify these Terms and Conditions or any of its Policies at any time by publishing the revised Terms and Conditions or Policies on the website through which the Services are made available and/or providing a copy of the revised Terms and Conditions or Policies to Customer's account by email. The Agreement shall incorporate such revised Terms and Conditions or Policies and will become effective within ten (10) business days of such publication or provision to Customer, unless Customer expressly accepts the revised Agreement earlier by clicking on the accept button. Customer's express acceptance or Customer's continued use of the Services after expiry of the notice period of ten (10) business days (being weekdays excluding any statutory holidays in Ontario), shall constitute Customer's acceptance to be bound by the terms and conditions of the revised Agreement.
7.2. Changes to Services
The Number may change the Services and/or other aspects of any of the Services at any time upon reasonable notice to Customer by posting the change on the website through which the Services are made available, sending notice via an email to the email address Customer provides on registration, a message on Customer's invoice, in writing, or any other notice method likely to come to Customer's attention. Customer's continued access to and use of the Services after the change has come into effect constitutes Customer's acceptance of the change and Customer acknowledges and agrees that (i) Customer will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) Customer will continue to be responsible to pay for the Services, subject to Section 6.2 above.
8. SUPPORT AND MAINTENANCE
8.1. Technical Support
The Number will provide basic support for the Services and will (i) use commercially reasonable efforts to make the Services available except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond The Number's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving The Number employees), or Internet Services provider failures or delays, and (ii) provide the Services only in accordance with applicable laws and government regulations.
8.2. Maintenance Services
The Number will provide updates and upgrades to the technology underlying the Services from time to time to provide new features and improvements, bug fixes and error corrections which will be available across the Services.
8.3. Professional Services
One-off consulting and professional services may be requested and agreed with The Number. All professional services shall be defined in a statement of work. If any work product or deliverables are generated through the provision of professional services under this Agreement ("Deliverables"), the parties will determine ownership of such Deliverables in the Order Form executed for the professional services. Notwithstanding the generality of the foregoing, any enhancements, modifications or other customizations to The Number IP or the Services will be owned by and vest in The Number exclusively including all right, title and interest in and to all Deliverables including the benefit of all copyrights, trademarks, patents, trade secrets or other intellectual property rights pertaining thereto.
9. LIABILITY PROVISIONS
9.1. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) NEITHER The Number NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY (WHETHER ARISING FROM THIS AGREEMENT OR RELATED TO THE SERVICES OR The Number IP) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF The Number (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE; AND (B) IN NO EVENT SHALL The Number'S (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES AND The Number IP, WHETHER IN CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO The Number HEREUNDER FOR THE SERVICES COMPONENT(S) GIVING RISE TO THE APPLICABLE CLAIM IN THE 12 MONTH PERIOD PRECEDING SUCH CLAIM.
9.2.
THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH.
9.3.
THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER The Number NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER'S ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO IMMEDIATELY CEASE USE OF SUCH SERVICES.
10. INDEMNIFICATION
10.1. Customer Indemnity
Customer agrees on demand to indemnify, defend and hold The Number, its affiliates and The Number personnel harmless from and against any and all liability and costs, including reasonable attorneys' fees incurred by such parties, in connection with or arising out of Customer's (a) breach of any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party through its misuse of the Services including breach of anti-SPAM legislation or the commercialization or use of UGC outside the permissions granted by the social network for such content.
12. GENERAL TERMS
12.1. Independent Contractors
The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither party shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
12.2. Prohibited Use
Use of the Services is unauthorized in any jurisdiction where the Services or any of the Customer Content or UGC may violate any laws or regulations. Customer agrees not to access or use the Services in such jurisdictions. Customer agrees that Customer is responsible for compliance with all applicable laws or regulations. Any contravention of this provision (or any provision of this Agreement) is entirely at Customer's own risk.
12.3. Force Majeure
Except for each party's obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.
12.4. Publicity
Customer hereby grants to The Number and its affiliates the right to use, reproduce, and display Customer's name, trademarks, brands and/or logos, in The Number's professional portfolios, public and other presentations, websites, social media channels, contributor lists, and customer lists, for the purpose of promoting The Number's business and professional activities. For clarity, this license includes the right to list Customer as a current or past customer of The Number.
12.5. Severability & Waiver
Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement. If The Number does not take action against all breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.
12.6. Assignment
Customer is not allowed to assign this Agreement or any rights hereunder without the prior written consent of The Number, such consent not to be unreasonably withheld. The Number is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.
12.7. Applicable Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of British Columbia, Canada without giving effect to any conflict of laws provisions that would require the application of the laws of a different jurisdiction, whether contained in Canadian law or the laws of Customer's current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the province of Ontario, Canada. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.8. Entire Agreement
The terms and conditions of this Agreement, together with any documents or terms incorporated herein by reference, constitute the entire agreement between Customer and The Number with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.