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THIS SUBSCRIPTION SERVICES AGREEMENT GOVERNS THE PROVISION AND USE OF THE REFERRAL SAASQUATCH SERVICES PURCHASED BY YOU (“YOU” or “SUBSCRIBER”) FROM REFERRAL SAASQUATCH.COM INC. (“REFERRAL SAASQUATCH”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SUBSCRIPTION AGREEMENT OR AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY YOU HEREBY REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND “SUBSCRIBER” SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU OR SUCH ENTITY DO NOT AGREE TO THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND NEITHER YOU NOR SUCH ENTITY MAY USE THE SERVICES.
1. DEFINITIONS. In this Agreement:
a) “Activation Date” means the first date that Subscriber is enabled by Referral SaaSquatch to connect to the Services pursuant to a paid subscription.
b) “Affiliate” means, in respect of an entity, any entity which directly or indirectly controls, is controlled by, or is under common control with such entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of an entity.
c) “Agreement” means this Subscription Services Agreement, including all accepted Order Forms.
d) “Confidential Information” means and includes any written or orally or visually disclosed information relating to the disclosing party’s business identified as “confidential” or which the receiving party should reasonably know is confidential or not generally known to the public, including, without limitation:
i. all know-how, technology and other proprietary information owned, licensed, used or developed by the disclosing party, including proprietary rights protected by trade secret and other intellectual property rights,
ii. and all information relating to the disclosing party’s business, the Services, and to all other aspects of the disclosing party’s structure, personnel, operations, financial matters, marketing, commercial strategies, customer lists, contractual records, correspondence, products, programs, devices, concepts, inventions, designs, methods, data, and items provided to the disclosing party by third parties subject to restrictions on use or disclosure.
e) “Documentation” means the documentation, help files, user manuals, handbooks, service descriptions, and any other written or electronic material relating to the Services provided by Referral SaaSquatch to its customers from time to time.
f) “Effective Date” means the date on which Subscriber first accepts this Agreement.
g) “End Users” means Subscriber’s clients who are granted a limited right to use the Services in accordance with this Agreement. “End User” shall mean any of them;
h) “Feedback” has the meaning ascribed to it in Section 8(c).
i) “Fees” means the monthly subscription fees for the Services as set out in the fee schedule available at http://www.referralsaasquatch.com/pricing/, as revised from time to time, unless otherwise provided in the Order Form(s).
j) “Non-Conformity” means the failure of the Services to comply with the applicable Services Description.
k) “Order Form(s)” means the order form(s), subscription agreement(s) or purchase order(s) executed by Subscriber and accepted by Referral SaaSquatch from time to time setting out the details of the Services subscribed to by Subscriber, including applicable fees and other payment terms. By executing and submitting an Order Form, Subscriber agrees to be bound by the terms of this Agreement, which will be incorporated by reference into and form an integral part of hereof.
l) “Privacy Policy” means the Referral SaaSquatch privacy policy available at http://www.referralsaasquatch.com/privacy-policy/, as amended from time to time.
m) “Referral SaaSquatch System” means, in respect of the Services, the entire physical operation(s) located at the facilities designated by Referral SaaSquatch from time to time to host the Services, including all networks and servers, and Referral SaaSquatch and third party hardware and software utilized in the provision of the Services.
n) “Representatives” means, in respect of a party, the directors, officers, employees, agents and contractors of such party.
o) “Services” means the referral marketing services and/or any other services supplied by Referral SaaSquatch to Subscriber, as more fully described in the Order Form(s).
p) “Services Description” means Referral SaaSquatch’s published specifications for the Services.
q) “Subscriber Data” means data which Subscriber or its End Users submit in connection with the Services, and which Subscriber or its End Users generate through the use of the Services.
r) “System Availability Period” means, in respect of the Services, twenty-four (24) hours per day, seven (7) days per week, excluding the System Maintenance Period and any downtime due to causes described in Sections 5 or 12(c).
s) “System Maintenance Period” means, in respect of the Services, scheduled maintenance periods during which access to the Services will not be available to Subscriber due to required system maintenance, upgrades, and other hosting requirements for the Referral SaaSquatch System.
t) “Term” has the meaning ascribed to it in Section 3.
All other terms defined in this Agreement shall have the meanings ascribed thereto.
2. PARTNER DEVELOPER AND TEST KEYS
a) Referral SaaSquatch may make the Services fully available to Subscriber on a technical evaluation basis until the earlier of
(i) the expiry of the technical evaluation period, or
(ii) the Activation Date of any Services purchased by Subscriber.
b) Subscriber acknowledges that Services provided as part of a technical evaluation are provided “as is” without warranty of any kind, and are supplied and used at Subscriber’s sole risk. Referral SaaSquatch expressly disclaims, and shall have no liability whatsoever, with respect to any Services provided pursuant to this Section 2, or Subscriber’s use thereof.
3. TERM
This Agreement shall commence on the Effective Date. If Subscriber is granted technical evaluation access to the Services, and does not purchase a license to use the Services prior to the expiry of the technical evaluation period, Subscriber’s right to access and use the Services will terminate at the end of the technical evaluation period. If Subscriber purchases a license to use the Services, this Agreement will automatically renew on a yearly basis, unless otherwise provided in the Order Form(s) or Subscription Agreement(s). The initial term and any renewal terms shall be collectively referred to in this Agreement as the “Term”.
4. SERVICES
a) Subject to the terms of this Agreement, Referral SaaSquatch will supply the Services purchased by Subscriber, and Subscriber is granted a limited, non-exclusive, non-transferable right to access and use the Services during the Term, solely in conjunction with the provision of rewards-based marketing programs. Referral SaaSquatch will provide the Services in accordance with the following standards:
i. Referral SaaSquatch will be responsible for delivery of access to the Services on the
i. Referral SaaSquatch System only, and is not responsible for any failure due to Subscriber’s or its End Users’ telecommunications connections, facilities (including internal local area networks (LAN)) or local infrastructure;
ii. Referral SaaSquatch will use all reasonable efforts to ensure that the Services will be available during the System Availability Period;
iii. Referral SaaSquatch will endeavour to provide Subscriber with at least forty-eight (48) hours prior electronic notice of any scheduled System Maintenance Period;
iv. Referral SaaSquatch shall have the right to implement updates and upgrades to any software systems used in providing the Services, at its sole discretion;
v. Except as otherwise provided herein, Referral SaaSquatch shall have the right to suspend or alter the Services at any time upon not less than sixty (60) days’ prior notice, which notice shall be posted on Referral SaaSquatch’s website or emailed to Subscriber. Notice shall not be required in the event of an emergency;
vi. Referral SaaSquatch will endeavour to respond promptly to incidents that have been reported by Subscriber;
vii. in the event of a Referral SaaSquatch System failure, Referral SaaSquatch will use commercially reasonable efforts to complete data recovery requests using the most recent version of the backup data, databases, applications and configuration pieces required to restore Subscriber data; and
viii. Referral SaaSquatch cannot be responsible for the unavailability of Services due to causes beyond Referral SaaSquatch’s reasonable control, including without limitation, those described in Sections 5 and 12(c).
5. RESTRICTIONS ON USE OF THE SERVICES
a) Subscriber shall use the Services only in accordance with the Documentation. Failure to use the Services in accordance with instructions, written and verbal, and documentation provided by Referral SaaSquatch may result in failure of all or any part of the Services, and/or accidental loss of data or data integrity. If Subscriber does not understand the requirements for the proper use of the Services, Subscriber must contact Referral SaaSquatch for additional information.
b) Subscriber may make copies of the Documentation solely for its own internal purposes in conjunction with its use of the Services, including Subscriber’s testing and optimization of the Services. Copyright and other proprietary rights in the Documentation, including all full and partial copies thereof, shall remain vested in Referral SaaSquatch. Subscriber may not remove any title, trademark, copyright and/or restricted rights or proprietary notices or labels from, or otherwise modify the Documentation, and all copies of the Documentation must include all such notices and labels.
c) Subscriber shall restrict access to the Services to its Representatives and End Users solely as required for Subscriber’s provision of rewards-based marketing programs. Without limiting the generality of the foregoing, Subscriber may not sell, rent, loan or otherwise grant any rights or access in or to the Services to any third party. Subscriber will be solely responsible for its Representatives’ compliance with this Agreement.
d) Subscriber will use all reasonable efforts to prevent unauthorized access to or use of the Services, and will promptly notify Referral SaaSquatch of any unauthorized use or access.
e) Subscriber shall not:
i. introduce any kind of malware, including but not limited to viruses, worms, Trojan horses or other harmful code that may damage the operation of the Services or the Referral SaaSquatch System;
ii. use the Services in any manner which could damage, disable, overburden or impair any part of the Referral SaaSquatch System, or interfere with any other Referral SaaSquatch subscriber’s data or their ability to use the Services or the Referral SaaSquatch System;
iii. attempt to gain unauthorized access to the Services or their related systems or networks;
iv. attempt to gain access to other subscribers’ accounts through any manner of hacking or password mining or other means;
v. attempt to use such methods as SQL Injection, Cross Site Scripting, Remote File Inclusion, Cross Site Request Forgery and any other methods not authorised by Referral SaaSquatch to gain access to the Referral SaaSquatch System or the Services;
vi. attempt a “denial of service” (DOS) attack of any kind;
vii. use the Services or the Referral SaaSquatch System to transmit spam, junk email or other unsolicited email of any kind; or
viii. in connection with the Services, engage in conduct that would constitute a criminal or quasi-criminal offence, that could give rise to civil liability, intellectual property rights infringement, or privacy rights violations, or that would otherwise violate any applicable local, provincial, state, federal or international law, or accepted Internet protocol.
f) Upon completion of the Services, Subscriber and its Representatives shall cease all use of the Services, and delete all full and partial copies of any Referral SaaSquatch materials contained in or on Subscriber’s or its personnel’s systems.
6. SUPPORT
Online technical support is available via the Referral SaaSquatch website: https://www.referralsaasquatch.com.
7. FEES AND PAYMENT
a) Subscriber agrees to pay to Referral SaaSquatch the Fees, plus all applicable taxes, in accordance with this Section 7.
b) Fees are payable in advance, and are due on the date of commencement of the Services and payable thereafter as per the terms of the Order Form(s).
c) Unless otherwise expressly stated, all references to monetary amounts contained in this Agreement, an accepted Order Form, a sales quote, or any reports, invoices or other documents issued pursuant to or in connection with this Agreement, shall be deemed references to United States
d) Subscriber shall pay interest on any invoiced amounts which are unpaid after 30 days at a rate of 2% per month (24% per annum, effective rate) or the maximum amount allowed by law (whichever is less), from the date such amounts become due and payable. Subscriber also agrees to pay all costs incurred by Referral SaaSquatch to collect any overdue amounts.
e) Without limiting any other rights and remedies which Referral SaaSquatch may have, Referral SaaSquatch shall also have the right to (i) revise payment terms, and/or (ii) immediately suspend or terminate any or all of the Services upon notice but without liability to Subscriber or any other party, if any Fees or other amounts owing by Subscriber to Referral SaaSquatch remain unpaid for three consecutive months, including any charge backs for NSF checks, or if any billing or contact information provider by Subscriber is false or fraudulent.
f) All Fees are exclusive of all taxes, duties and levies of any kind, including any sales, use, excise, valueadded and other applicable taxes, withholdings, and governmental charges (collectively, “Taxes”). Subscriber shall be solely responsible for the payment of all applicable Taxes, other than taxes on Referral SaaSquatch’s income. If Referral SaaSquatch pays any such amounts on behalf of Subscriber, Subscriber shall reimburse Referral SaaSquatch upon presentation of proof of payment.
8. INTELLECTUAL PROPERTY RIGHTS
a) Subscriber acknowledges that Referral SaaSquatch has developed and uses valuable technical and nontechnical information, trade secrets, know-how and the like in the supply of the Services. Subscriber agrees that, except for the limited right to use the Services as set out in this Agreement, all rights, title and interest in and to the Services, Referral SaaSquatch software and materials, Documentation, and any other new or pre-existing materials, models, methodology, information, technology, patents, trade secrets, hardware, software, equipment and materials used by Referral SaaSquatch in conjunction with the delivery of the Services, including all modifications and derivatives thereof, shall be and remain vested in Referral SaaSquatch. Except for the limited right to use as necessary in conjunction with the use of the Services or any deliverables produced as part of the Services, Subscriber and Subscriber’s Representatives obtain no rights or licenses in or to any Referral SaaSquatch information, methodology, software, technology, trademarks, or other intellectual property.
b) Subscriber recognizes and acknowledges the great value of the goodwill associated with Referral SaaSquatch’s name and trademarks, and the identification of Referral SaaSquatch’s goods or services therewith. Subscriber agrees that it obtains no rights, title or interest of any kind in or to any trademarks, tradenames, logos, service marks or other markings belonging to Referral SaaSquatch.
c) Referral SaaSquatch is granted a perpetual, irrevocable, royalty-free, worldwide license to use any suggestions, recommendations, comments or other feedback (“Feedback”) provided by Subscriber and/or its End Users, including their Representatives, with respect to the Services, the Services software, Documentation or any other propriety information provided by Referral SaaSquatch to Subscriber. All Feedback shall be given voluntarily and without expectation of, or requirement for, compensation. Specifically, Subscriber will not give any Feedback that is subject to license or other restrictions, or that may require any Referral SaaSquatch product, technology, service or documentation to be licensed or otherwise shared with any third party.
9. DATA
a) Subscriber shall be solely responsible for the accuracy, quality, integrity and legality of Subscriber Data (including, but not limited to, compliance with all applicable privacy, security and export legislation).
b) The parties acknowledge that, as between Subscriber and Referral SaaSquatch, Subscriber shall at all times remain the owner of Subscriber Data. Referral SaaSquatch shall not use Subscriber Data or disclose Subscriber Data to any third parties, except as may be necessary for the purpose of offering Referral SaaSquatch’s services. Without limitation, Subscriber agrees that Referral SaaSquatch may store, backup and archive Subscriber Data, either on its own servers or on servers owned by a third party service provider; and (ii) use aggregated and/or derivative data generated from the use of the Services, provided that Subscriber’s and its End Users’ anonymity are maintained.
c) Subscriber agrees to the Privacy Policy, which is applicable to the collection, use and disclosure of personal information by Referral SaaSquatch, and which is incorporated by reference into this Agreement.
10. CONFIDENTIALITY
a) Each party agrees to hold all Confidential Information of the other party in strictest confidence, not to make use thereof other than for the performance of this Agreement, to disclose such Confidential Information only to its Representatives who are under an obligation of confidentiality with respect thereto and who require such information for the performance of their duties, and not to disclose such Confidential Information to any third parties, except with the disclosing party’s prior written consent; provided, however, that the foregoing restrictions shall not apply to Confidential Information of the other party:
i. that is now or hereafter in the public domain through no action or failure to act on the part of the receiving party or its Representatives;
ii. that was received by or was available to the receiving party from a third party without any obligation of confidentiality to the disclosing party;
iii. that is independently developed by or for the receiving party by persons who have not had access to the Confidential Information of the disclosing party;
iv. that is disclosed with the written consent of the disclosing party; or
v. that is disclosed pursuant to the requirement of a governmental agency or is required by operation of law, regulation or court order, provided that whenever possible prompt notice is given by the receiving party to the disclosing party prior to such disclosure so that the disclosing party may seek a protective order or other remedy.
b) Each party agrees to protect and safeguard Confidential Information of the other party from loss, theft, destruction and inadvertent disclosure using the same degree of care as it uses to protect its own confidential information of a like nature, but in no event less than a reasonable standard of care.
c) Each party shall hold the other party’s Confidential Information in trust for the other party and all right, title and interest in and to such Confidential Information shall remain with the disclosing party.
d) Except as provided in Section 16(c)(vi), upon termination of the Services, or otherwise upon the request of a disclosing party, the receiving party will promptly destroy all full and partial copies of the disclosing party’s Confidential Information in its possession or under its control, and certify such destruction in writing.
11. SUBSCRIBER LIABILITY
Subscriber shall be solely responsible for, and shall hold Referral SaaSquatch and its Representatives harmless from any loss, damage or liability arising in connection with:
a) Subscriber’s, its Representatives’ or its End Users’ use of the Services, and all data and other content transmitted, posted, received or created on the Referral SaaSquatch System through Subscriber’s or its End Users’ accounts, even if transmitted, posted, received or created by a third party;
b) Subscriber’s, its Representatives’ or its End Users’ use, misuse, failure to use, or inability to use any data services required for the use of the Services, including any abuse, fraudulent use or unauthorized access thereto;
c) Any cause set out in Section 5 or 12(c);
d) Any claim by an End User against Referral SaaSquatch or its third party suppliers;
e) Any claim by a third party that Subscriber Data or Subscriber’s use of the Services in violation of this
Agreement infringes or misappropriates the intellectual property rights of any third party; and/or
f) Any breach by Subscriber, its Representatives or its End Users of any of the terms and conditions of this Agreement.
12. REPRESENTATIONS AND WARRANTIES.
a) Mutual Warranties – Each party represents and warrants that:
i. it is a company or other legal entity duly organized and validly existing under the laws of its jurisdiction of registration; and
ii. it is duly authorized, and has the power and capacity to enter into this Agreement and to observe, perform and comply with the terms of this Agreement.
b) Services Warranty – Referral SaaSquatch further represents and warrants that, during the paid subscription period, the Services will be provided substantially in accordance with the applicable Services Description and Documentation.
c) Exclusions – The foregoing warranty shall not apply to Non-Conformities that result from any cause beyond the reasonable control of Referral SaaSquatch including, but not limited to:
i. Subscriber’s failure to:
A. prepare and maintain a technical environment that meets the specifications provided by Referral SaaSquatch from time to time; or
B. provide necessary communications mechanisms as specified by Referral SaaSquatch from time to time;
ii. the use of the Services in combination with apparatus, systems, products or services where such combination was not provided, proposed, recommended or approved by Referral SaaSquatch, or contemplated in the Documentation; or
iii. failures relating to Subscriber’s or its End Users’ computing environment including, without limitation, electrical failure, Internet connection problems, communications problems, or data or data input, output, integrity, storage, back-up, and other external and/or infrastructure problems which, as between Subscriber and Referral SaaSquatch, shall be deemed to be under Subscriber’s exclusive control and sole responsibility.
d) Remedies. If Subscriber notifies Referral SaaSquatch in writing of a breach of the limited warranty set out in (b), Referral SaaSquatch shall, at its cost and expense, use commercially reasonable efforts under the circumstances to correct or bypass, in Referral SaaSquatch’s reasonable discretion, the NonConformity within a reasonable period or such other period as may be agreed by the parties taking into account the nature and severity of the Non-Conformity. If, after reasonable efforts, Referral SaaSquatch determines that it is unable to rectify the Non-Conformity, it shall provide Subscriber with an equitable partial or full refund of any pre-paid Fees for the defective Services. These remedies shall be exclusive, even if they fail as to their essential purpose. This warranty does not apply to technical evaluations which are provided “as is” without warranty of any kind.
e) Third Party Products and Services. Subscriber acknowledges that the Services are provided in part through the use of third party software, hardware, and hosting and storage services. While Referral SaaSquatch has used all reasonable efforts to engage the highest quality third party product and services providers, neither Referral SaaSquatch nor its third party suppliers shall be responsible for, and provide no representations or warranties with respect to, any third party hardware, software or services used in connection with the delivery of the Services.
13. EXCLUSION OF WARRANTIES
a) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 12, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH PARTY HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WHETHER ARISING UNDER STATUTE, FROM A COURSE OF DEALING, USAGE, CUSTOM OF THE TRADE OR OTHERWISE, REGARDING THE SERVICES, ANY DELIVERABLES, THE DOCUMENTATION, OR ANY OTHER PRODUCTS, SERVICES OR MATERIALS PROVIDED OR FAILED TO BE PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCESSIBILITY, PRIVACY OF FILES OR SECURITY.
b) REFERRALSAASQUATCH.COM INC. DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER PRODUCTS, SERVICES OR DELIVERABLES PROVIDED HEREUNDER WILL BE UNAFFECTED BY BUGS, VIRUSES, ERRORS OR OTHER PROGRAM LIMITATIONS, NOR DOES REFERRALSAASQUATCH.COM INC. WARRANT THAT SUBSCRIBER’S OR IT’S END-USERS’ USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THEY WILL MEET ALL OF THE SUBCRIBER’S REQUIREMENTS OR EXPECTATIONS.
c) SUBSCRIBER ACKNOWLEDGES AND AGREES THAT REFERRALSAASQUATCH.COM INC. PROVIDES NO WARRANTIES AND SHALL HAVE NO LIABILITY IN RESPECT OF THE INTEGRITY OF SUBSCRIBER DATA, OR ANY OTHER DATA OR MATERIALS PROVIDED BY SUBSCRIBER OR ANY THIRD PARTY THROUGH SUBSCRIBER’S OR ITS END USERS’ ACCOUNTS, AND REFERRALSAASQUATCH.COM INC. EXPRESSLY EXCLUDES ANY WARRANTIES OR REPRESENTATIONS REGARDING THE ACCURACY OR COMPLETENESS OF SUCH DATA OR MATERIALS.
14. INTELLECTUAL PROPERTY INDEMNITY
a) Subject to the limitations of liability contained herein, Referral SaaSquatch will defend any claim or action brought against Subscriber alleging that the Services, as supplied to Subscriber, infringe any patent, copyright or trade secret, and shall indemnify and hold Subscriber harmless against resulting costs and damages finally awarded against Subscriber, provided that Subscriber: (i) promptly notifies Referral SaaSquatch in writing of the existence of the claim or action; (ii) allows Referral SaaSquatch sole control of the defence or settlement of the action; (iii) provides such reasonable cooperation as Referral SaaSquatch may require at Referral SaaSquatch’s expense; and (iv) makes no admissions or other statements which may be prejudicial to Referral SaaSquatch. In no event will Subscriber consent to any judgement, agree to settlement, or do any other act in compromise of the claim or action, without Referral SaaSquatch’s express prior consent. Subscriber acknowledges that its failure to comply with the foregoing obligations may compromise Subscriber’s right to recovery under this Section 14. In no event will Referral SaaSquatch be liable for the payment of any amounts agreed to in settlement without its express written
b) If, at any time, Referral SaaSquatch becomes aware of a potential infringement by the Services, or if Subscriber is enjoined from its use of the Services due to a proceeding based upon an alleged infringement, then Referral SaaSquatch may, at its option and expense, either: (i) procure for Subscriber the right to continue using the Services; (ii) modify the Services such that they are non-infringing and capable of performing as set out in the relevant specifications; (iii) replace the Services with functionally equivalent, non-infringing Services; or (iv) if satisfactory resolution of the matter employing the options described in (i), (ii) or (iii), above, is not possible despite Referral SaaSquatch’s reasonable commercial efforts, Referral SaaSquatch may terminate the Services and refund any prepaid but unused portion of the license fees paid in respect thereof.
c) Notwithstanding any other provision of this Agreement, Referral SaaSquatch will have no liability to Subscriber, and Subscriber shall defend and indemnify Referral SaaSquatch and its Representatives, to the extent that an actual or alleged infringement is based upon: (i) a modification to the Services which has not been carried out by Referral SaaSquatch; (ii) any use, operation or combination of the Services with any software, materials or data not supplied or approved by Referral SaaSquatch; or (iii) use of the Services in a manner for which they were not intended or other than as permitted under this Agreement; (iv) or Subscriber ‘s failure to provide relevant information or documentation.
d) ENTIRE LIABILITY. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF REFERRALSAASQUATCH.COM INC. WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS AND OTHER INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHTS BY THE SOFTWARE, SERVICES, DOCUMENTATION, DELIVERABLES AND RELATED MATERIALS SUPPLIED PURSUANT TO THIS AGREEMENT.
15. LIMITATION OF LIABILITY AND DAMAGES
a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S AND ITS RESPRESENTATIVES’ TOTAL COLLECTIVE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND/OR ANY PRODUCTS, SERVICES OR MATERIALS DELIVERED OR FAILED TO BE DELIVERED UNDER THIS AGREEMENT, SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED BY SUBSCRIBER, NOT TO EXCEED THE AMOUNT ACTUALLY PAID BY SUBSCRIBER FOR THE PRODUCT, SERVICE OR MATERIALS GIVING RISE TO THE CLAIM. EXCEPT FOR A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS OR A BREACH OF DATA SECURITY, TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY SUBSCRIBER TO REFERRALSAASQUATCH.COM INC. FOR THE SERVICES DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE MOST RECENT CLAIM. EXCEPT FOR A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS OR A BREACH OF DATA SECURITY, IN NO EVENT WILL EITHER REFERRALSAASQUATCH.COM INC. OR SUBSCRIBER BE LIABLE IN ANY WAY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE OF SYSTEMS OR EQUIPMENT, DATA, INCOME, BUSINESS, PROFIT, GOODWILL, ANTICIPATED REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHERWISE.
b) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DUE TO THE NATURE OF THE INTERNET, SUBSCRIBER AGREES THAT REFERRALSAASQUATCH.COM INC. WILL NOT BE LIABLE FOR ANY LOSS, COSTS OR DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH: ACCESS OR INTERCONNECTIONS WITH THE REFERRALSAASQUATCH.COM INC. SYSTEM OR THE SERVICES; ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS; LOST OR ALTERED MESSAGES OR TRANSMISSIONS; ANY INCORRECT OR EXCESSIVE REWARDS OFFERED OR PROVIDED TO END USERS.
c) SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT IS BETWEEN SUBSCRIBER AND REFERRAL SAASQUATCH ONLY.
d) NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED OR HAVE BEEN DISCOVERED BY, SUBSCRIBER.
e) THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), PRODUCT LIABILITY, INDEMNIFICATION, FUNDAMENTAL BREACH OR OTHERWISE, AND REGARDLESS OF WHETHER A PARTY AND/OR ITS REPRESENTATIVES KNEW, OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES.
f) SUBSCRIBER AGREES THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT, WITHOUT WHICH REFERRALSAASQUATCH.COM INC. WOULD NOT HAVE ENTERED INTO THIS AGREEMENT AND/OR AGREED TO PROVIDE THE SERVICES UNDER THE CURRENT TERMS (INCLUDING FEES).
g) BECAUSE THE LAWS OF SOME LOCATIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO ALL SUBSCRIBERS.
16. TERMINATION
a) In addition to any other rights that it may have, either party may terminate this Agreement if
the other party breaches any of its representations or warranties, or any other material obligation under this Agreement, and fails to remedy such breach within thirty (30) days of receipt of notice from the non-breaching party. Referral SaaSquatch shall also have the right to suspend performance of all or any of the Services, without liability, pending the rectification of any breach by Subscriber.
b) Either Party may terminate this Agreement immediately upon written notice if the other party makes an assignment for the benefit of its creditors or becomes bankrupt, or makes an application for relief under the provisions of any statute now or hereafter in force concerning bankrupt or insolvent debtors, or if a receiving order or receivership order is made against the non-terminating party, or any action whatsoever, legislative or otherwise be taken to effect the non-terminating party’s winding up, dissolution, suspension of operations or liquidation.
c) Without limiting any other remedies available under this Agreement, at law or in equity, in the event of the termination of this Agreement or any of the Services for any reason:
i. Referral SaaSquatch’s obligation to provide the Services, and Subscriber’s and its End Users’ rights to use the Services, will terminate;
ii. Subscriber’s access to Referral SaaSquatch systems, keys, and any Subscriber information and data previously created and stored, will terminate;
iii. All unpaid amounts due in respect of the terminated Services up to and including the effective date of termination shall, at Referral SaaSquatch’s option, become immediately due and payable;
iv. Except in the case of billing error on the part of Referral SaaSquatch, Referral SaaSquatch will not refund or pro-rate subscription Fees for any portion of the billing cycle which is unused following termination by Subscriber;
v. Subscriber must destroy any copies of the Documentation in Subscriber’s possession in any form and on any media, and certify to Referral SaaSquatch in writing that it has done so;
vi. Referral SaaSquatch may destroy, in its sole discretion, Subscriber Data remaining on the Referral SaaSquatch System after either:
A. receiving confirmation that Subscriber has a copy of any remaining data;
B. providing Subscriber with a copy of any remaining data pursuant to a written request by Subscriber; or
C. 60 days following the expiration or termination of this Agreement;
vii. Any termination will be without prejudice to the accrued rights and liabilities of either party arising prior to the termination of this Agreement. The termination will not affect the coming into force or the continuation in force of any term which is expressly or by implication intended to come into or continue in force after any termination; and
viii. All provisions of this Agreement in favor of either party and all rights and remedies of either party, whether in law or in equity, will survive termination. Further, Sections 5(e), 7(d), 7(f), 8, 9, 10, 11, 12(a), 13, 15, 16(d), 17, 18(a), 18(f), 18(j) and 18(k) shall survive the expiration or termination of this Agreement until such time as the parties may agree to the release of the obligations contained therein.
17. DISPUTE RESOLUTION / EQUITABLE RELIEF
a) In the event of any dispute arising out of this Agreement, the parties shall use commercially reasonable efforts to negotiate a settlement in good faith satisfactory to both parties. If they do not reach a solution within a period of sixty (60) days (or such other longer period as the parties may agree), then either party may, on written notice to the other party, refer the dispute for settlement by arbitration before a single arbitrator in accordance with the International Commercial Arbitration Rules of Procedure of the BC International Commercial Arbitration Centre. The costs of the arbitrator will be borne equally by the parties, but they will otherwise bear their respective costs incurred in connection with the arbitration. The parties shall select the arbitrator promptly and use commercially reasonable efforts to conduct the arbitration hearing no later than three (3) months after the arbitrator is selected. The arbitrator may not award punitive or exemplary damages against either party or any other relief in excess of the limitations set forth herein. The judgment and award of the arbitrator will be final and binding on each party. Judgment upon the award may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award and/or an order of enforcement as the case may be. No action, regardless of form, arising out of or in connection with this Agreement may be brought by Subscriber more than twelve (12) months after the occurrence of the event giving rise to the cause of action, regardless of whether the Subscriber was aware or ought reasonably to have been aware of the event.
b) Equitable Relief. Notwithstanding the provisions of Section 17(a), Subscriber acknowledges that any breach of this Agreement could cause irreparable harm and significant injury to Referral SaaSquatch that may be difficult to ascertain. Accordingly, Subscriber agrees that Referral SaaSquatch will have the right to seek and obtain immediate injunctive relief in any court having competent jurisdiction over Subscriber, to enforce its rights under this Agreement, and without showing or proving any actual or threatened damage. This right shall be in addition to all other rights and remedies that Referral SaaSquatch may have at law and in equity.
18. GENERAL PROVISIONS
a) Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be exclusively governed by, the laws of the Province of British Columbia and the federal laws of Canada applicable in that province, as if it had been wholly performed within British Columbia, but excluding conflicts of laws provisions. The parties expressly exclude the application of the Convention of The Hague regarding the Unification of Law Governing the International Sale of Goods (1964), and the United Nations Convention on Contracts for the International Sale of Goods (the “Vienna Convention“).
b) International Users. Subscriber’s and its End Users’ information may be processed and stored in both Canada and the United States. Referral SaaSquatch services are offered only in jurisdictions where they may be lawfully offered for sale, and are offered only to persons to whom it is lawful to make a solicitation. Subscriber agrees to comply with all applicable laws, rules and regulations governing Subscriber’s use of the Services. If Subscriber’s users or End Users reside in the European Union or if any transfer of information between such users or End Users and Referral SaaSquatch is governed by the European Union Data Protection Directive or laws implementing that directive, then Subscriber consents, and represents and warrants that it has obtained all necessary consents from its End Users, to the transfer of such information outside of the European Union to such country or countries as may be contemplated by the features and activities provided by the Referral SaaSquatch services.
c) Assignment. Subscriber may not assign or transfer any of its rights or obligations under this Agreement to any person without the express prior written consent of Referral SaaSquatch. This Agreement will ensure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
d) Entire Agreement. Subscriber acknowledges that this Agreement, including the Privacy Policy and the accepted Order Form(s), comprises the entire understanding and agreement between parties regarding the Services and supersedes all prior written and oral agreements, purchase orders, representations, understandings, promises, descriptions or other communications between the parties regarding the Services. Referral SaaSquatch may change, modify, add or remove portions of this Agreement, as it relates to the Services, at any time. Referral SaaSquatch will notify Subscriber of any changes to this Agreement regarding the Services by posting notice of such changes on the Referral SaaSquatch web site’s (http://www.referralsaasquatch.com, https://www. saasquatch.com), by email, or by sending notice to Subscriber in accordance with Section 18(h). Subscriber’s continued use of the Services following notice of such change means that Subscriber agrees to and accepts the Agreement as amended. If Subscriber does not agree to any modification of this Agreement relating to the Services, Subscriber must immediately stop using the Services and notify Referral SaaSquatch that it is terminating its use of the Services. Except as otherwise provided in this Agreement, and Amendments to this Agreement shall be agreed in a written amendment, signed by the authorized representatives of both parties.
e) Force Majeure. Neither party shall be liable for delay or failure in performance (other than the making of payments) resulting from acts beyond the control of such party, including but not limited to, acts of God, acts of war, riot, fire, flood, or other disaster, acts of government, strike lockout, power failures, or the inability to use or the failure of any third party telecommunications carrier or other services, which events or conditions prevent in whole or in part the performance by such party of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make performance commercially unreasonable. In such event, the party affected shall be excused from performance on a day-to-day basis to the extent of the delay, and the other party shall likewise be excused from the performance of its obligations on a day-for-day basis to the extent such party’s obligations related to the performance are so delayed.
f) Independent Contractors. Neither Referral SaaSquatch’s nor Subscriber’s officers, employees or agents shall be deemed to be officers, employees or agents of the other, and neither Referral SaaSquatch nor Subscriber shall represent that its relationship with respect to the other party is other than that of an independent contractor. Nothing in this Agreement shall create in either party any right or authority to incur any obligations on behalf of, or to bind in any respect, the other party, and nothing in this Agreement shall be construed so as to create any agency, joint venture or partnership between the parties. Nothing contained herein shall prevent either party from procuring or providing the same or similar products and services from or to any third party, provided that there is no breach of any obligations pertaining to confidentiality or the use and protection of intellectual property.
g) US Government Users. Referral SaaSquatch provides the Services, including related software and technology, for ultimate U.S. federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Referral SaaSquatch to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. Unpublished rights are protected under US and international copyright laws. The owner of the Services software is Referral SaaSquatch.com Ltd., with offices at #100 – 838 Fort St., Victoria, B.C, Canada V8W 1H8.
h) Notices. All communications and notices provided for herein shall be in writing and shall be deemed to have been given when delivered personally to the recipient, by email, or by registered or certified mail with return receipt requested, postage prepaid, and addressed to the applicable signatory at the address appearing on the Order Form(s) or at such other address as either party may designate by notice to the other. Copies of notices to Referral SaaSquatch must also be sent to Referral SaaSquatch’s legal counsel: Farris, Vaughan, Wills & Murphy LLP, 3rd – 1005 Langley Street, Victoria, BC, Canada V8W 1V7.
i) No Waiver. No provision of this Agreement and no breach by either party of any such provision will be considered to have been waived unless such waiver is in writing and signed by the other party. The written waiver by either party of any breach by the other party of any provision of this Agreement will not be deemed to be a waiver of such provision, or of any subsequent breach by the other party of the same or any other provision of this Agreement.
j) Publicity. Referral SaaSquatch may use Subscriber’s name and trademarks solely for the purpose of identifying Subscriber as a Referral SaaSquatch customer on its website, in its marketing materials and in press releases disclosing the existence, but not the contents, of this Agreement. Except as expressly permitted in this Section and in Section 10, neither party shall issue any press release, or otherwise publicly identify the other as a past or present subscriber or supplier, in any marketing materials or otherwise, without the express prior authorization of the other party.
k) Severability. If any provision contained in this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, it shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be in any way affected or impaired thereby and shall continue in full force and effect.
l) Export Control. The Services and other technology made available by Referral SaaSquatch, including any modifications or derivatives thereof, may be subject to the export control laws of Canada, the United States and other jurisdictions. Subscriber warrants that it and its affiliates are not named on any Canadian or United States government restricted party list, and agrees that it will not use, access or permit the use or access of the Services or other materials supplied by Referral SaaSquatch in violation of any applicable Canadian or United States laws or regulations.
m) Language/Langue. Subscriber agrees that this Agreement, and all correspondence and documentation relating to this Agreement, shall be written in the English language. Vous acceptez que ces termes, ainsi que toute la correspondence et la documentation relative à ces termes, soient rédigées en langue anglaise.