END-USER LICENCE AGREEMENT
THIS AGREEMENT GOVERNS YOUR SUBSCRIPTION AND USE OF THE LICENSED SOFTWARE RUBBERDUCK CMS.
THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.
BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.
IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR DO NOT AGREE WITH THESE TERMS OF SERVICE, PLEASE LEAVE OUR WEBSITE AND REFRAIN FROM USING OUR SERVICES.
This Agreement was last updated on August 1, 2021. It is effective between You and Us as of the date of Your acceptance of this Agreement.
“You” or “Your” means the person or company who is being licensed to use the licensed software in association with the End-User Licence Agreement (the “Agreement” or “Terms of Service”). “We”, “Our”, “Us” and “RubberDuck” means Développement numérique RubberDuck Inc.
NOW, THEREFORE, THIS AGREEMENT WITNESSES
that, in consideration of the mutual covenants contained herein, the Parties
hereto agree as follows:
1.1. Definitions. Capitalized terms in this Agreement will have the following meanings:
“Agreement” means this Software Licence Agreement between Us and You;
“RubberDuck Services” or “Services” means Our RubberDuck CMS software products and services being provided to You under this Agreement, as well as related documentation and computer readable media;
“Sublicensed Services” means certain third party owned software components, Apps (as defined below), or Third Party Services (as defined below) being provided under this Agreement, that are required to properly enable or operate the RubberDuck Services;
Other capitalized terms have the meanings defined in the Agreement.
2. SOFTWARE LICENCE, RIGHTS & RESTRICTIONS
2.1. Software Licence and Rights. In consideration of the mutual covenants, and subject to the provisions contained in this Agreement, We hereby grant to You a revocable, non-exclusive licence to use the RubberDuck Services solely in order to utilize the products and services as provided under the Agreement.
2.2. Restrictions. Without limiting the generality of the foregoing, You will use the RubberDuck Services only for purposes set forth herein, and, further, You expressly agree that You DO NOT have rights to:
(a) own title, or transfer title to the RubberDuck Services to another party;
(b) distribute, or sublicence or otherwise provide copies or any rights in relation to the RubberDuck Services to any third party;
(c) pledge, hypothecate, alienate or otherwise encumber the RubberDuck Services to any third party;
(d) use the RubberDuck Services to rent, lease or otherwise provide location-enabled telecommunication or information services to Your customers, including, without limitation, data processing, hosting, outsourcing, service bureau or online application services (ASP) offerings; or
(e) modify, enhance, reverse engineer, decompile, disassemble or create substantially derived forms of the RubberDuck Services.
2.3. Enforcement of Restrictions. We will have the right to inspect and enforce the restrictions and covenants contained in this Agreement at Your sole expense, and You hereby agree to promptly notify Us of any known violations of such restrictions.
2.4. Our Obligations. Upon Your acceptance of this Agreement, We will:
(a) permit You to use the most current version of the RubberDuck Services for Your use under this Agreement; and
(b) provide You with ongoing updates to the RubberDuck Services as We consider needed. In each such case, We will automatically provide and install the necessary updates.
3.1. Account Terms.
3.1.1. To access and use the Services, You must register for a RubberDuck account (“Account”) by providing Your full legal name, current address, phone number, a valid e-mail address, and any other information indicated as required. We may reject Your application for an Account, or cancel an existing Account, for any reason, in Our sole discretion.
3.1.2. You must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where You reside and from which You use the Services to open an Account.
3.1.3. You confirm that You are receiving any Services provided by Us for the purposes of carrying on a business activity and not for any personal, household or family purpose.
3.1.4. You acknowledge that We will use the e-mail address You provide on opening an Account or as updated by You from time to time as the primary method for communication with You. You must monitor the primary Account e-mail address You provide to Us and Your primary Account e-mail address must be capable of both sending and receiving messages. Your e-mail communications with Us can only be authenticated if they come from Your primary Account e-mail address.
3.1.5. You are responsible for keeping Your password secure. We cannot and will not be liable for any loss or damage from Your failure to maintain the security of Your Account and password.
3.1.6. You acknowledge that You are responsible for the creation and operation of Your Account.
3.1.7. Upon subscribing to the Services, You accept that We send You informational newsletters periodically. Notwithstanding the foregoing, You may at any time, notify Us in writing, to request that We cease sending You said newsletter or limit the frequency at which You receive said newsletter.
3.1.8. RubberDuck is not a marketplace. Any contract of sale through Your website (the “Website) is directly between You and the buyer.
3.1.9. You are responsible for all activity and Material such as photos, images, videos, graphics, written content, design drawings, databases, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with Your Account (“Materials”).
3.1.10.A breach or violation of any term in the Terms of Service, as determined in Our sole discretion, may result in an immediate termination of the Services.
3.2. Account Owner. The following is important information about Your account.
3.2.1. The person or entity, signing up for the Service and whose Website shall be displayed via the Services, by opening an Account, shall be the Account Owner, that is the contracting party (“Account Owner”) for the purposes of this Agreement, and will be the person who is authorized to use any corresponding Account We may provide to the Account Owner in connection with the Services. For greater clarity, the ultimate beneficiary of the Service, whether it is via the services of an Agency Account or other third party, whose Website and services are offered, via a personalised Account, shall be the Account Owner. As such, the person or entity whose payment information is processed to pay for the Fees is not necessarily the Account Owner of the Account. You are responsible for ensuring that the name of the Account Owner (including the legal name of the company that owns the Account, if applicable) is clearly visible on Your Website.
3.2.2. If You are signing up for the Services on behalf of Your employer, Your employer shall be the Account Owner. If You are signing up for the Services on behalf of Your employer, then You must use Your employer-issued email address and You represent and warrant that You have the authority to bind Your employer to Our Terms of Service.
3.2.3. Your Account can only be associated with one Account Owner. An Account Owner may have multiple Accounts.
3.3. Agency Accounts.
3.3.1. Subject to section 3.4.2, the person, entity or agency signing up for the Service, on behalf of the Account Owner, by opening an Account will be the contracting party (“Agency Account”) for the purposes of this Agreement and will be the person who is authorized to use any corresponding Account We may provide to the Account Owner in connection with the Services. You are responsible for ensuring that the name of the Account Owner (including the legal name of the company that owns the Account, if applicable) is complete and accurate.
3.3.2. If an Agency Account signs up for the Services on behalf of a person or entity, whose Website shall be displayed via the Services, said person or entity shall be the Account Owner. If You, in Your capacity as an Agency Account, sign up for the Services on behalf of an Account Owner, then said Agency Account must use Your email address and You represent and warrant that You have the authority to bind the Account Owner to Our Terms of Service.
3.3.3. Your Account can be associated with multiple Account Owners.
3.3.4. Notwithstanding the foregoing, You acknowledge and agree that the Account Owner will be the sole owner of the Account with full rights to it.
3.4. Staff Accounts.
3.4.1. You (as Account Owner or as Agency Account) can create one or more staff accounts (“Staff Accounts”) allowing other people to access the Account. With Staff Accounts, the Account Owner can set permissions and let other people work in their Account while determining the level of access by Staff Accounts to specific business information.
3.4.2. The Account Owner is responsible and liable for the acts, omissions and defaults arising from use of Staff Accounts in the performance of obligations under this Agreement as if they were the Account Owner’s own acts, omissions or defaults.
3.4.3. The Account Owner and the users under Staff Accounts are each referred to as a “User”.
3.5. Management. Pursuant to this Agreement, upon opening Account for the Services, You hereby authorize and grant RubberDuck with administrative rights to operate the Account on Your behalf. Notwithstanding the foregoing, You remain the owner of the Account.
4. COPYRIGHT AND MARKS
4.1. Copyright. The RubberDuck Services, including any documentation, media, packaging and illustrations, is copyrighted and constitutes Our valuable property. You agree that all physical manifestations of the RubberDuck Services will display Our copyright notice in a conspicuous manner. The RubberDuck Services is protected under Canadian copyright laws and international treaty provisions. You will have a right to copy these elements, provided copyright notices and acknowledgement of trademarks are included, pursuant to the covenants herein. You will include the following notice on any printed, electronic, online or packaged version of the RubberDuck Services, in any form whatsoever:
“Copyright © [2020-03-01] RUBBERDUCK CMS
All rights reserved.”
4.2. Trademarks. Certain logos, product names and trademarks owned by Us may be contained within the printed materials and electronic manifestations of the RubberDuck Services. You will have no right to use such marks except as set out in this Agreement.
5.1. Title. You agree that the RubberDuck Services is licensed, not sold to You. You agree that the RubberDuck Services belongs to Us, including all intellectual and proprietary rights, unless otherwise specified. We retain all right, title and interest in and to the RubberDuck Services at all times, and regardless of the form or media in or on which the original or other copies may subsequently exist. Additionally, all content accessed through the RubberDuck Services is the property of the applicable content owner and may be protected by applicable intellectual property laws. This Agreement gives You no rights to such content. You agree to protect the RubberDuck Services from unauthorized use, reproduction, distribution or publication in electronic or physical form. Finally, any suggestions, ideas or inventions that You voluntarily and optionally disclose to Us through any means will be used, or not used, by Us at Our sole discretion; and, We will have no obligation to You regarding any ideas or inventions that You disclose through such means.
6. PAYMENT OF SUBSCRIPTION FEES
6.1. You will pay the fees applicable to Your subscription and any other applicable fees (“Fees”).
6.2. You must keep a valid payment method on file with a Third Party Payment Processor to pay for all incurred and recurring Fees. You will be charged applicable Fees to any valid payment method that You authorize (“Authorized Payment Method”) by said Third Party Payment Processor, and it will continue to charge Your Authorized Payment Method for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full.
6.3. All Fees and other charges for Account Owners, whose Account address is based in Canada, shall be charged in Canadian dollars, and all payments shall be in Canadian currency.
6.4. All Fees and other charges for Account Owners, whose Account address is based within the European Union, shall be charged in Euros, and all payments shall be in Euros.
6.5. All Fees and other charges for Account Owners, whose Account address is based outside of Canada and the European Union, shall be charged in US dollars, and all payments shall be in the currency of the United Stated of America.
6.6. Fees are paid in advance and will be billed in 30-day intervals. Fees will appear on an invoice, which will be sent to the Account Owner via the e-mail provided. As well, an invoice may appear on the Account page of Your administration console. Users have 14 days to bring up and settle any issues with the billing of Fees.
6.7. If We are not able to process payment of Fees using an Authorized Payment Method, We will make a second attempt to process payment using any Authorized Payment Method 3 days later. If the second attempt is not successful, We will make a third attempt to process payment using any Authorized Payment Method 3 days later. We will make a final attempt 3 days following the third attempt. If Our final attempt is not successful, We may suspend and revoke access to Your Account and the Services. Your Account will be reactivated upon Your payment of any outstanding Fees, plus the Fees applicable to Your next billing cycle. You may not be able to access Your Account during any period of suspension. If the outstanding Fees remain unpaid for 15 days following the date of suspension, We reserve the right to terminate Your Account.
6.8. All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”).
6.9. You are responsible for all applicable Taxes that arise from or as a result of Your subscription the Services.
6.10. For the avoidance of doubt, all sums payable by You to Us under these Terms of Service shall be paid free and clear of any deductions or withholdings whatsoever. Other than Taxes charged by Us to You and remitted to the appropriate tax authorities, any deductions or withholdings that are required by law shall be borne by You and paid separately to the relevant taxation authority. We shall be entitled to charge the full amount of Fees stipulated under these Terms of Service to Your Authorized Payment Method ignoring any such deduction or withholding that may be required.
6.11. You are responsible for all applicable Taxes that arise from or as a result of any sale with regard to Your use of the Services.
6.12. You must maintain an accurate location in the administration menu of Your Account. If You change jurisdictions, You must promptly contact Us to give US Your location.
6.13. We do not provide refunds of Fees.
7. MODIFICATIONS TO THE SERVICE AND PRICES
7.1. Price. Prices for using the Services are subject to change. For existing User and Account Owners, prices for using the Services are subject to change upon 3-months’ notice from Us. Such notice may be provided at any time by e-mail, by posting the changes to the Website or the administration menu of Your Account via an announcement. We reserve the right to increase or modify Our pricing, from time to time, at Our sole discretion.
7.2. Modifications. We reserve the right at any time, and from time to time, to modify or discontinue, the Services (or any part thereof) with or without notice (unless otherwise required by applicable law).
7.3. We shall not be liable to You or to any third party for any modification, price change, suspension or discontinuance of the Service.
8. INTELLECTUAL PROPERTY AND CUSTOMER CONTENT
8.1. We do not claim any intellectual property rights over the Materials You provide to Us or to the Account. All Materials You upload to Your Account remains Yours. You can remove Your Account at any time by deleting it.
8.2. By uploading or posting Materials, You agree:
(a) to allow other internet users to view the Materials You post publicly to Your Account; and
(b) to allow Us to store, and in the case of Materials You post publicly, display and use Your Materials.
8.3. You retain ownership over all Materials that You upload to Your Account; however, You agree to allow others to view Materials that You post publicly. You are responsible for compliance of the Materials with any applicable laws or regulations.We shall have the non-exclusive right and license to use the names, trademarks, servicemarks and logos associated with Your Account to promote the Services.
9.1. Certain activities, whether legal or illegal, may be harmful to other users and violate Our rules of conduct below, and some activities may also subject You to liability. Therefore, in order to ensure that RubberDuck is a safe place for all Users, You may not engage in such activities on Our sites.
9.1.1. You agree that:
(a) You are responsible for what You publish;
(b) harassment will not be tolerated in any form, including but not limited to: harassment based on gender, gender identity and expression, sexual orientation, disability, physical appearance, body size, race, age or religion. Any report of harassment will be addressed immediately. Harassment includes, but is not limited to:
i. comments or imagery that reinforce social structures of domination related to gender, gender identity and expression, sexual orientation, disability, physical appearance, body size, race, age, or religion;
ii. unwelcome comments regarding a person’s lifestyle choices and practices, including those related to food, health, parenting, drugs, and employment;
iii. abusive, offensive, or degrading language or imagery;
iv. language or imagery that encourages, glorifies, incites, or calls for violence, emotional, or physical harm against an individual or a group of people;
v. intimidation, stalking, or following;
vi. no images containing nudity or expressions of sexual relationships that might be deemed inappropriate for a business environment should be uploaded or linked to;
vii. unwelcome sexual attention or advances; and
viii. advocating for, or encouraging, any of the above behaviour.
(c) The Materials You publish will not knowingly infringe any patent, trademark, trade secret, copyright or other intellectual property rights of any other person, company or organization;
(e) You will not use the Services to transmit, or procure the sending of, any advertising or promotional material without Our prior written consent, including any “spam”, “junk mail”, “chain letter” or any other similar solicitation;
(f) You will fully comply with all applicable laws and any other contractual terms which govern Your use of the Services (and any related interaction or transaction), including those specific laws applicable to You in any of Your geographical locations;
(g) You will be solely responsible and liable with respect to any of the uses of the Services which occur under Your Account and/or Website, and for any of Your Materials (including for any consequences of accessing, importing, uploading, copying, using or publishing such Materials on or with respect to the Services);
(h) You will regularly and independently save and backup any of Your Materials and the information that is being processed by You regarding Your Account and Website, including with respect to end users, user products, and any applications and/or third party Services used by You;
(i) You agree to receive from time to time promotional messages and materials from Us or Our partners, by mail, e-mail or any other contact form You may provide Us with (including Your phone number for calls or text messages). If You wish not to receive such promotional messages or materials - please just notify Us at any time;
(j) You agree to allow Us to use in perpetuity, worldwide and free of charge, any version of Your Website (or any part thereof) for any of Our marketing and promotional activities, online and/or offline, and modify it as reasonably required for such purposes, and You waive any claims against Us or anyone on Our behalf relating to any past, present or future moral rights, artists’ rights, or any other similar rights worldwide that You may have in or to Your Website with respect to such limited permitted uses;
(k) You agree that it is Our sole discretion as to the means, manner, and method for performing the Services, including those regarding the hosting, transmission, publication and/or display of any Account, Website and/or Materials (including the inclusion and presentation of any advertisements or other commercial content with respect thereto).
(l) You agree that We shall have the right to offer the Services in alternative price plans and impose different restrictions as for the upload, storage, download and use of the Services in each price plan, including, without limitation, restrictions on network traffic and bandwidth, size and/or length of Materials, quality and/or format of Materials, sources of Materials, volume of download time, number of subscribers to Your Materials, etc.
(m)Additionally, You agree not to:
i. Use the Services in any way that violates any applicable law or regulation (including, without limitation, any laws regarding the export of data or software to and from Canada or other countries);
ii. Use any device, software or routine that interferes with the proper working of the Services;
iii. Introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
iv. Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Website or the Services is stored, or any server, computer or database connected to the Website or the Services; and
v. Otherwise attempt to interfere with the proper working of the Website or the Services.
10.1. We respect the intellectual property of others and require that Users of Our Services do the same. Notwithstanding the foregoing, We will not monitor or remove Materials from the Services that may infringe on intellectual property of others. We will not be held liable for any damage or liability caused by You due to Your infringement of intellectual property of others. As such You are responsible to ensure that Your Materials do not infringe the intellectual property of others.
11. MONITORING AND ENFORCEMENT
11.1. From time to time the need may arise to address an especially problematic User because of significant Service disturbance or dangerous behaviour. In such cases, We reserve the right, but do not have the obligation to:
(a) Exercise Our enforcement discretion with respect to the above terms. Accounts not following the rules of conduct listed above will be blocked. Materials which does not follow the rules of conduct listed above will be removed;
(b) Take appropriate legal action, including referral to law enforcement for any illegal or unauthorized use of the Services, cooperate with any law enforcement authorities or court orders requesting or directing Us to disclose the identity of anyone posting any Materials on or through the Services;
(c) You waive and hold harmless Us from any claims resulting from any action taken by Us during or as a result of investigations by either Us or law enforcement authorities; and
(d) In rare cases, and only at the discretion of the board itself, some issues may be escalated to the full RubberDuck board.
12. CANCELLATION AND TERMINATION
12.1. Cancelation. You may cancel Your Account and terminate this Agreement at any time.
12.2. Upon termination of the Services by either party for any reason:
(a) We will cease providing You with the Services and You will no longer be able to access Your Account;
(b) unless otherwise provided in the Terms of Service, You will not be entitled to any refunds of any Fees, pro rata or otherwise;
(c) any outstanding balance owed to Us for Your use of the Services through the effective date of such termination will immediately become due and payable in full; and
(d) Your Account will be taken offline.
12.3. Termination. If at the date of termination of the Services, there are any outstanding Fees owing by You, You will receive one final invoice via e-mail. Once that invoice has been paid in full, You will not be charged again.
12.4. We reserve the right to modify or terminate the Services, this Agreement and/or Your Account for any reason, without notice at any time (unless otherwise required by applicable law). Termination of this Agreement shall be without prejudice to any rights or obligations which arose prior to the date of termination.
12.5. Fraud. Without limiting any other remedies, We may suspend or terminate Your Account if We suspect that You (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the use of the Services.
13. WARRANTY AND INDEMNITY
13.1. Warranty. We warrant that We are the owner of the RubberDuck Services and have the right and authority to grant the licence to the RubberDuck Services. We do not warrant, guarantee, accept any condition or make any representation that the RubberDuck Services will meet Your requirements or that the use of the RubberDuck Services will be uninterrupted or error-free. No other verbal or written information provided by Us will create a warranty or in any way increase Our liability, and You will not rely on such information.
13.2. DISCLAIMER. USE OF SERVICES IS AT YOUR OWN RISK. WE PROVIDE THE RUBBERDUCK SERVICES ON AN “AS IS”, “WHERE IS”, BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT. WE ALSO DISCLAIM ALL LIABILITY WITH REGARD TO YOUR VIEWING OF ANY WEBSITES THAT MAY BE LINKED FROM THE RUBBERDUCK SERVICES THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. WE MAKE NO WARRANTY THAT THE SERVICES ARE ACCURATE, TIMELY, UNINTERRUPTED OR ERROR-FREE, THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE RELIABLE, TGAT THE SERVICES WILL IDENTIFY ANY IDENTITY THEFT, THAT THE QUALITY OF ANY PRODUCTS OBTAINED OR PURCHASED THROUGH THE USE OF THE SERVICES WILL MEET YOUR EXPECTATIONS OR THAT ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
13.3. The above exclusions may not apply in jurisdictions that do not allow the exclusion of certain implied warranties.
14. THIRD PARTY SERVICES
14.1. Third Party Services. We may from time to time recommend, provide You with access to, or enable third party software, applications (“Apps”), third party payment processor (“Third Party Payment Processor”), products, services or website links (collectively, “Third Party Services”) for Your consideration or use. Such Third Party Services are made available only as a convenience, and Your purchase, access or use of any such Third Party Services is solely between You and the applicable third party services provider (“Third Party Provider”). In addition to this Agreement, You also agree to be bound by the additional service-specific terms applicable to services You purchase from, or that are provided by, Third Party Providers.
14.2. You acknowledge and agree that We do not store any of Your banking or credit card information. You agree not to hold Us responsible for the payment processing of Third Party Services. For greater certainty, as applicable, if You link a Third Party Payment Processor account to Your Account, You acknowledge and agree that by making payments through the Services with that Third Party Payment Processor, You are bound by that Third Party Payment Processor’s applicable terms and conditions, and We are not liable for any loss, claims or damages howsoever arising in connection with that Third Party Payment Processor services.
14.3. Any use by You of Third Party Services offered through the Services, the Website is entirely at Your own risk and discretion, and it is Your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them.
14.4. We do not provide any warranties or make representations to You with respect to Third Party Services. You acknowledge that We have no control over Third Party Services and shall not be responsible or liable to You or anyone else for such Third Party Services. The availability of Third Party Services on the Website, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation of any kind by or with Us. We do not guarantee the availability of Third Party Services and You acknowledge that We may disable access to any Third Party Services at any time in its sole discretion and without notice to You. We are not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. We strongly recommend that You seek specialist advice before using or relying on Third Party Services, to ensure they will meet Your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice, when assessing the correct tax rates You should charge to Your customers.
14.5. If You install or enable a Third Party Service for use with the Services, You grant Us permission to allow the applicable Third Party Provider to access Your data and other Materials and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other Materials or other interaction between You and the Third Party Provider is solely between You and such Third Party Provider. We are not responsible for any disclosure, modification or deletion of Your data or other Materials, or for any corresponding losses or damages You may suffer, as a result of access by a Third Party Service or a Third Party Provider to Your data or other Materials.
14.6. The relationship between You and any Third Party Provider is strictly between You and such Third Party Provider, and We are not obligated to intervene in any dispute arising between You and a Third Party Provider.
14.7. Under no circumstances shall We be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or Your contractual relationship with any Third Party Provider. These limitations shall apply even if We have been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
14.8. You agree to indemnify and hold Us and (as applicable) Our parent, subsidiaries, affiliates, Our partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of Your use of a Third Party Service or Your relationship with a Third Party Provider.
15. LIMITATION OF LIABILITY AND REMEDIES
15.1. LIMITATION OF LIABILITY. IN NO EVENT WILL WE, OUR DISTRIBUTORS, DISTRIBUTEES, SUPPLIERS, MERCHANT BUSINESS ASSOCIATES, ADVERTISERS, THIRD-PARTY DEVELOPERS OR DISTRIBUTORS OF SUPORTED SOFTWARE, OR ANY OF THE FOREGOING ENTITIES’ OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (COLLECTIVELY “PROTECTED PARTIES”) BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY YOU, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST INFORMATION, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE RUBBERDUCK SERVICES REGARDLESS OF WHETHER YOU HAVE ADVISED US OR WE HAVE ADVISED YOU OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY IN RESPECT OF ANY AND ALL CLAIMS WILL BE LIMITED TO FEES PAID BY YOU DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO SAID CLAIM. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE, EXTRACONTRACTUAL LIABILITY OR BREACH OF CONTRACT.
NEITHER YOU NOR WE MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE EXCLUSIONS MAY NOT APPLY.
15.2. No Protected Parties’ Liability. Protected Parties assume no liability hereunder for, and shall have no obligation to defend You or to pay costs, damages or attorneys’ fees for, any claim arising from:
(a) any method or process in which RubberDuck Services may be used by You;
(b) any results of using RubberDuck Services;
(c) any results of using the Sublicensed Services;
(d) any use of other than a current unaltered release of RubberDuck Services; or
(e) the combination, operation or use of any RubberDuck Services furnished hereunder with non-RubberDuck services if such infringement would have been avoided by avoidance of the combination, operation or use of the RubberDuck Services with other programs, data or other materials.
15.3. Dispute Resolution. You acknowledge that We possess valuable confidential and proprietary information, including trademarks and business practices, which would be damaging to Us if revealed in open court. You further acknowledge and agree that it is preferable to resolve all disputes between Us and You confidentially, individually and in an expeditious and inexpensive manner. We and You accordingly acknowledge and agree that private dispute resolution is preferable to court actions. Before commencing any arbitration in the manner set out in Section 15.4 below, We and You shall first attempt to resolve any dispute or differences between the both of Us by way of good faith negotiation. The good faith negotiation shall commence by each of Us and You communicating Our position regarding the complaint, claim, dispute or controversy to the other party, and how the both of Us should resolve the dispute. We and You shall then make good faith efforts to negotiate a resolution of the claim, dispute or controversy. Neither We nor You shall commence any arbitral proceedings unless and until the good faith negotiation fails.
15.4. Arbitration. If after good faith negotiations any disputed question shall remain between Us and You relating to the application, interpretation, implementation or validity of this Agreement, You agree to resolve the dispute by binding arbitration at ADR Chambers using the ADR Chambers Expedited Arbitration Rules. You agree that the ADR Chambers Expedited Arbitration Rules give You a fair opportunity to present Your case and respond to Our case. The arbitration shall be held in Montréal (Quebec, Canada) and shall proceed in accordance with the provisions of the Civil Code of Quebec (CQLR c. CCQ-1991) and the Quebec Code of Civil Procedure (CQLR c. c-25.01). Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
16. SUCCESSORS AND ASSIGNS
16.1. Successors and Assigns. You may not assign Your rights and duties under this Agreement to any party at any time. This Agreement will enure to the benefit of and will be binding on Us and Our respective successors and permitted assigns. In the event of corporate merger, amalgamation, divestiture or asset sale, We will have the right to transfer and assign Our rights and obligations hereunder to any third party assignee, upon written notice to You, provided that We cause the Assignee to agree in writing to all the terms contained in this Agreement.
17. UPGRADES AND UPDATES
17.1. Upgrades. Other than Our obligation under Section 2.4(b), We shall have no other obligations to provide updates or support services to You. Obligations or expectations with regard to product upgrades, enhancements, support or remedies for errors, defects or deficiencies will be limited to those expressly set forth in a separate agreement between Us and You. In the absence of such an agreement between Us and You, We will use reasonable efforts to provide ongoing support and remedies to identified errors and defects, on a time and material basis, at Our then current commercial rates.
18.1. Confidentiality. You acknowledge that the existence of this Agreement, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, customer, technical and financial information that they have received or will receive in connection with this Agreement, is considered private and confidential (the “Confidential Information”). You will use reasonable diligence and in no event less than the degree of care which We use in respect to Our own confidential and proprietary information of like nature, to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity. Such Confidential Information will exclude:
(a) information that is already in the public domain;
(b) information already known to the receiving party, as of the date of the disclosure, unless the receiving party agreed to keep such information in confidence at the time of its original receipt;
(c) information hereafter obtained by the receiving party, from a source not otherwise under an obligation of confidentiality with the disclosing party;
(d) information that the receiving party is obligated to produce under order of a court of competent jurisdiction, provided that the receiving party promptly notifies the disclosing party of such an event so that the disclosing party may seek an appropriate protective order.
19.2. Additionally, if: (a) You are established in the European Economic Area (EEA); (b) You provide goods or services to customers in the EEA; or (c) You are otherwise subject to the requirements of the EU General Data Protection Regulation, Our collection and use of personal information of any European residents is also subject to the laws applicable in those juridications.
20.1. Term. The term of this Agreement will commence on the date of Your agreement to these terms and shall continue indefinitely until the termination of the Services.
21.1. Consents. Any consent required under this Agreement will not be unreasonably withheld.
21.2. Captions. The article and paragraph headings used herein are for convenience only and are not a part of this Agreement and will not be used in construing it.
21.3. Entire Agreement. This Agreement constitutes the entire agreement between You and Us, and no amendment to the terms of this Agreement will be effective unless in writing and signed by both You and Us.
21.4. Force Majeure. Notwithstanding anything herein to the contrary, We shall not be liable for any delay or failure in performance caused by circumstances beyond Our reasonable control.
21.5. Relationship of the parties. This Agreement does not constitute a partnership or joint venture, and nothing herein contained is intended to constitute, nor will it be construed to constitute, such a partnership or joint venture. Except as expressly provided in this Agreement, neither We nor You will have any power or authority to act in the name or on behalf of the other party, or to bind the other party to any legal agreement.
21.6. Severability. The provisions of this Agreement are to be considered separately, and if any provision hereof should be found by any court or competent jurisdiction to be invalid or unenforceable, this Agreement will be deemed to have effect as if such provision were severed from this Agreement.
21.7. Number and Gender. Where the context permits, the singular includes the plural, and the masculine includes the feminine and vice versa.
21.8. Notices. Any notice to be given hereunder shall be in writing and either delivered personally or sent by e-mail or prepaid courier. Notices by e-mail to Us shall be sent to email@example.com. Notices to You shall be made through the RubberDuck Services’s notification area or sent to Your e-mail address registered with Us. Notices shall be deemed to be received upon confirmation through a proof of successful delivery by e-mail, through the RubberDuck Services’s notification area or by the courier, as the case may be.
21.9. Governing Law. This Agreement and any sales thereunder shall be deemed to have been made in the province of Quebec and shall be construed and interpreted according to the laws of the province of Quebec and the laws of Canada applicable therein.
21.10. Revisions to this Agreement. We may at any time revise the terms of this Agreement by updating these terms and by providing notice to You of that change.
21.11. Language. The parties hereto confirm that it is their wish that this Agreement as well as other documents relating hereto have been and shall be drawn up in English only. Les parties aux présentes confirment leur volonté que cette convention de même que tous les documents s’y rattachant soient rédigés en anglais seulement.