Topicflow software-as-a-service
TERMS OF SERVICE
Last updated:
July 5 2022
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Topicflow!
These Terms of Service (together
with any Order Forms, the "Agreement") form an agreement
between the customer accessing, downloading, installing or
otherwise using (the terms "use" and "using" will refer to any of the
foregoing) the Topicflow Services (as defined below) (such
customer, the "Customer") and Topicflow
Technologies Inc. ("Topicflow"), the supplier of the
Topicflow Services, and is entered into on the earlier of the date
Customer first uses any part of the Topicflow Services and the date
Customer agrees to be bound by this Agreement (the
"Effective Date"). Each of Topicflow and Customer shall individually be
referred to as a "Party" and jointly as the
"Parties".
This Agreement sets forth the
terms and conditions that govern the provision and use of the
Services.
BY USING THE TOPICFLOW SERVICES
(INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS
READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS
AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO
TIME IN ACCORDANCE WITH SECTION 11(k). IF CUSTOMER DOES NOT ACCEPT
AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY
CEASE ANY FURTHER USE OF THE TOPICFLOW SERVICES. CUSTOMER
REPRESENTS AND WARRANTS TO TOPICFLOW THAT CUSTOMER HAS THE CAPACITY
TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING
THE TOPICFLOW SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY
REPRESENTS AND WARRANTS TO TOPICFLOW THAT CUSTOMER HAS THE
AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
THE TOPICFLOW SERVICES MAY NOT
BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY,
PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR
COMPETITIVE PURPOSES.
TOPICFLOW'S
DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE TOPICFLOW
SERVICES, EXCEPT WITH TOPICFLOW'S PRIOR WRITTEN CONSENT.
- Topicflow Services
- Provisioning of the Topicflow
Services. Subject to Customer's and its
Permitted Users' compliance with the terms and conditions of this
Agreement, Topicflow will make the Topicflow Services available to
Customer and Permitted Users on the terms and conditions set out in
this Agreement during the Term.
- Restrictions on
Use. Customer will not itself, and
will not permit others to:
- sub-license, sell, rent, lend,
lease or distribute the Topicflow Services or any Intellectual
Property Rights therein, or otherwise make the Topicflow Services
available to others other than Permitted Users;
- use the Topicflow Services to
permit timesharing, service bureau use or commercially exploit the
Topicflow Services;
- use or access the Topicflow
Services:
- in violation of any applicable
law;
- in a manner that threatens the
security or functionality of the Topicflow Services; or
- for any purpose or in any manner
not expressly permitted in this Agreement;
- use the Services to create,
collect, transmit, store, use or process any Customer
Data:
- that contains any computer
viruses, worms, malicious code, or any software intended to damage
or alter a computer system or data;
- that Customer does not have the
lawful right to create, collect, transmit, store, use or process;
or
- that infringes, violates or
otherwise misappropriates the intellectual property or other rights
of any third party (including any moral right, privacy right or
right of publicity);
- Modify the Topicflow
Services;
- reverse engineer, decompile or
disassemble the Topicflow Services;
- remove or obscure any
proprietary notices or labels on the Topicflow Services, including
brand, copyright, trademark and patent or patent pending
notices;
- access or use the Topicflow
Services for the purpose of building a similar or competitive
product or service;
- perform any vulnerability,
penetration or similar testing of the Topicflow Services;
or
- use the Services for any purpose
or in any manner not expressly permitted in this
Agreement.
- Permitted
Purpose. Customer may access and
use the Topicflow Services solely for Customer's internal business
purposes.
- Suspension of Access; Scheduled
Downtime; Modifications. Topicflow
may, from time to time and in its discretion, without limiting any
of its other rights or remedies at law or in equity, under this
Agreement:
- suspend Customer's access to or
use of the Services or any component thereof:
- if Customer or any Permitted
User violates any provision of this Agreement;
- for scheduled
maintenance;
- due to a Force
Majeure;
- to address any emergency
security concerns;
- if required to do so by a
regulatory body or as a result of a change in applicable law;
or
- for any other
reason as provided in this Agreement.
- Modify the Services.
Customer is required to accept
all patches, bug fixes and updates made by or on behalf of
Topicflow to the Topicflow Services.
- Subcontracting. Topicflow
may engage third parties to assist it in providing the Services or
any part thereof.
- Third-Party
Products. The Topicflow Services
may contain or require the use of Licensed Third Party Technology
or other third party products that are owned by third parties
(collectively "Third-Party
Products"), such as calendars. Customer
will accept and comply with the license terms applicable to
Third-Party Products. If Customer does not agree to abide by the
applicable license terms for any such Third-Party Products, then
Customer should not install, access, or use such Third-Party
Products. Any acquisition by Customer of such Third-Party Products,
and any exchange of data between Customer and any such provider of
Third-Party Products is solely between Customer and the applicable
Third-Party Products provider. Topicflow does not warrant or
support Third-Party Products or other third party products,
offerings or services, whether or not they are designated by
Topicflow as "certified" or otherwise. Topicflow cannot guarantee
the continued availability of such Third-Party Products features,
and may cease providing them without entitling Customer to any
refund, credit, or other compensation, if for example and without
limitation, the provider of a Third-Party Products ceases to make
the Third-Party Products available for interoperation or otherwise
in connection with the corresponding service features in a manner
acceptable to Topicflow. Topicflow is not responsible for any
disclosure, modification or deletion of Customer Data resulting
from access by such Third-Party Products or its
provider.
- User Accounts
- Upon Customer's
request, Topicflow will issue one or more administrator accounts to
Customer that provides Customer with the capability to create user
accounts (each, a "Customer User
Account") for each user that Customer
wishes to have access to and use of the Topicflow Services (each
user, and each administrator, a "Permitted User").
- The Customer is
responsible for identifying and authenticating all Permitted Users
and for Permitted Users' use of the Topicflow Services in
compliance with this Agreement. The Customer will ensure that
Permitted Users only use the Topicflow Services through the
Customer User Account. Customer will not allow any Permitted User
to share the Customer User Account with any other person. Customer
will promptly notify Topicflow of any actual or suspected
unauthorized use of the Topicflow Services. Topicflow reserves the
right to suspend, deactivate, or replace the Customer User Account
if it determines that the Customer User Account may have been used
for an unauthorized purpose.
- The Customer will ensure that
all individual users of the Topicflow Services, including Permitted
Users, are contractually bound to terms and conditions with
the Customer that are no less restrictive or protective of
Topicflow's rights than those set forth in this
Agreement
- Ownership; Reservation of Rights
- The Customer
retains all ownership and Intellectual Property Rights in and to
Customer Data. Customer grants to Topicflow, and its subcontractors
a nonexclusive, worldwide, royalty-free, irrevocable,
sublicensable, and fully paid-up right to a access, collect, use,
process, store, disclose, transfer, transmit, copy, Modify and
display Customer Data to:
- provide the
Services;
- improve and enhance the Services
and its other offerings; and
- produce and/or
generate data, information, or other materials that are anonymized
and not identified as relating to a particular individual or
company (such data, information and materials, the
"Aggregated Data").
Topicflow may use, process,
store, disclose and transmit the Aggregated Data for any purpose
and without restriction or obligation to Customer of any kind. As
between Topicflow and Customer, all right, title, and interest in
Aggregated Data, and all Intellectual Property Rights therein,
belong to and are retained solely by Topicflow.
- Topicflow or its
licensors retain all ownership and Intellectual Property Rights in
and to:
- the
Services;
- anything
developed or delivered by or on behalf of Topicflow under this
Agreement;
- all other of
Topicflow's Confidential Information, including but not limited to,
any reports generated from the Topicflow Services or any Aggregated
Data;
- any Modifications
to the foregoing (i), (ii) and (iii)
(collectively
"Topicflow Property").
- Customer grants
to Topicflow and its affiliates a worldwide, perpetual, irrevocable,
royalty-free license to use and incorporate into the Topicflow
Services, any suggestion, enhancement request, recommendation,
correction or other feedback provided by Customer or Permitted
Users relating to the operation of Services or any of Topicflow's
affiliates' services ("Feedback"). Nothing in this
Agreement will restrict our right to use, profit from, disclose,
publish or otherwise exploit any Feedback, without compensation to
the Customer or Permitted Users and without any obligation to the
Customer or any Permitted User. Topicflow is not obligated to use
any Feedback.
- All rights not
expressly granted by Topicflow to Customer under this
Agreement are reserved.
- Privacy
Customer
understands that Personal Information will be treated in accordance
with Topicflow's privacy policy located at
https://www.topicflow.com/privacy-policy/, as updated by Topicflow from time to time.
- Fees and Payment:
- Fees. If Customer registers
for a paying account, Customer will pay to Topicflow the fees
described on the Order Form (the "Fees"). Unless otherwise noted
on an Order Form: (i) all Fees are identified in
US dollars; (ii)
Fees are non-cancelable and non-refundable; and (iii) quantities
purchased cannot be decreased during the relevant subscription
term.
- Exceeding Service
Capacity. If Customer's use of the
Topicflow Services exceeds the service capacity set forth on an
Order Form or otherwise requires the payment of additional fees
pursuant to the terms of this Agreement, the Customer will be
billed for such usage on a monthly basis and Customer will pay the
additional fees in accordance with this Agreement.
- Changes to the
Fees. Topicflow reserves the right
to change the Fees and institute new charges on each anniversary of
the Term upon providing not less than 30 days prior notice to
Customer.
- Invoicing. Topicflow will prepare and
send to the Customer, at the then-current contact information on
file with Topicflow, an invoice for any Fees that have become due
and payable. Unless otherwise expressly stipulated in an invoice,
Customer will pay all invoiced amounts within 30 days of the
invoice date.
- Disputed Invoices or
Charges. If the Customer believes
Topicflow has charged or invoiced the Customer incorrectly, the
Customer must contact Topicflow no later than 30 days after having
been charged by Topicflow or receiving such invoice in which the
error or problem appeared in order to request an adjustment or
credit. In the event of a dispute, the Customer will pay any
undisputed amounts in accordance with the payment terms herein, and
the Parties will discuss the disputed amounts in good faith in
order to resolve the dispute.
- Late Payment. The Customer may not withhold or setoff any amounts
due under this Agreement. Topicflow reserves the right to suspend
the Customer's access to the Services until all due and undisputed
amounts are paid in full. Any late payment will be increased by the
costs of collection (if any) and will incur interest at the rate of
one and a half percent (1.5%) compounded monthly (19.56% annually),
or the maximum legal rate (if less), plus all expenses of
collection, until fully paid. Without limiting Topicflow other
rights, Topicflow may suspend Customer's access to or its
performance of the Services, if Customer has not paid the
applicable Fees within 10 days of the date that such Fees become
due.
- Taxes. The Fees set out in this Agreement do not include
applicable sales, use, gross receipts, value-added, excise,
personal property or other taxes. Customer will be responsible for
and pay all applicable taxes, duties, tariffs, assessments, export
and import fees or similar charges (including interest and
penalties imposed thereon) on the transactions contemplated in
connection with this Agreement other than taxes based on the net
income or profits of Topicflow.
- Suspension. Any suspension of the Services by Topicflow pursuant
to the terms of this Agreement will not excuse Customer from its
obligation to make payments under this Agreement.
- Confidential Information
- Definitions. For the
purposes of this Agreement, a Party receiving Confidential
Information (as defined below) will be the "Recipient", the Party disclosing
such information will be the "Discloser" and
"Confidential
Information" of the Discloser means any
and all information of the Discloser or any of its licensors that
has or will come into the possession or knowledge of the Recipient
in connection with or as a result of entering into this Agreement,
including information concerning the Discloser's past, present or
future customers, suppliers, technology or business, and where the
Discloser is Customer includes Customer Data; provided that the
Discloser's Confidential Information does not
include, except with respect to Personal Information: (i)
information already known or independently developed by the
Recipient without access to the Discloser's Confidential
Information; (ii) information that is publicly available through no
wrongful act of the Recipient; or (iii) information received by the
Recipient from a third party who was free to disclose it without
confidentiality obligations.
- Confidentiality
Covenants. The Recipient hereby
agrees that during the Term and at all times thereafter it will
not, except to exercise its license rights or perform its
obligations under this Agreement:
- disclose Confidential
Information of the Discloser to any person, except to:
- in the case of Customer to its
own employee having a "need to know" and that have entered into
written agreements no less protective of such Confidential
Information than this Agreement, and to such other recipients as
the Discloser may approve in writings; or
- in the case of Topicflow to
Topicflow's employees, consultants, agents or affiliates, having a
"need to know" and that have entered into written agreements no
less protective of such Confidential Information than this
Agreement; to such other recipients as the Discloser may approve in
writing; and to its subcontractors or contractors to perform the
Services;
- use Confidential Information of
the Discloser; or
- alter or remove from any
Confidential Information of the Discloser any proprietary
legend.
- Safeguards. Each Party will take industry standard precautions to
safeguard the other Party's Confidential Information, which will in
any event be at least as stringent as the precautions that the
Recipient takes to protect its own Confidential Information of a
similar type.
- Exceptions to
Confidentiality. Notwithstanding Section
6(b), the Recipient may disclose the Discloser's Confidential
Information: (i) to the extent that such disclosure is required by
applicable law or by the order of a court or similar judicial or
administrative body, provided that, except to the extent prohibited
by law, the Recipient promptly notifies the Discloser in writing of
such required disclosure and cooperates with the Discloser to seek
an appropriate protective order; or (ii) to its legal counsel and
other professional advisors, if and to the extent such persons need
to know such Confidential Information in order to provide
applicable professional advisory services in connection with the
Party's business.
- Return of
Confidential Information. Upon the
termination or expiration of this Agreement and all Order Forms
under this Agreement, each Party will promptly return to the other
Party or destroy all Confidential Information (excluding any
Customer Data which is addressed at Section 10(d) below) of the
other Party in its possession or control within a reasonable amount
of time, in accordance with the Recipient's data destruction
practices. Notwithstanding the foregoing, Topicflow may retain any
electronically archived Customer's Confidential Information,
provided that such retained information remains subject to the
confidentiality obligations in this Agreement.
- Warranty and Disclaimer
- Customer
Warranty. Customer represents and
warrants to and covenants with Topicflow that the Customer Data
will only contain Personal Information in respect of which Customer
has provided all notices and disclosures (including to each
Permitted User), obtained all applicable third party consents and
permissions and otherwise has all authority, in each case as
required by and in compliance with applicable laws, including
applicable privacy laws, to enable Topicflow to provide the
Services, including without limitation with respect to the
collection, storage, access, use, disclosure, processing and
transmission of Personal Information, including by or to Topicflow
and to or from all applicable third parties; and
- GENERAL
DISCLAIMER. TOPICFLOW DOES NOT
WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR
THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY
WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE
SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE
SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES
PROVIDED BY Topicflow TO CUSTOMER ARE PROVIDED "AS IS" AND "AS
AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
Topicflow HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR
STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER
WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE,
NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET
ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A
PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING
OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE
GENERALITY OF ANY OF THE FOREGOING, Topicflow EXPRESSLY DISCLAIMS
ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR
INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER'S USE
OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE,
OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE
WHATSOEVER.
- Indemnities
- Topicflow's
Indemnity.
- Topicflow will
indemnify, defend, and hold harmless the Customer and its officers,
directors, employees, and agents (each, a "Customer Indemnitee") from and
against any and all Losses incurred by a Customer Indemnitee
arising out of or relating to any claim, action, demand, inquiry,
audit, proceeding, or investigation of any nature, civil, criminal,
administrative, regulatory, or other, whether at law, in equity or
otherwise (collectively, an "Action") by a third party (other
than an affiliate or a Customer Indemnitee) that arise from or
relate to any allegation that the Topicflow Services infringe any
third-party Intellectual Property Right in Canada and United
States. The foregoing obligation does not apply to any Action or
Losses arising out of or relating to any: (A) incorporation of any
Topicflow Services into, or any combination, operation, or use of
any Topicflow Services with, any products or services not provided
or authorized by Topicflow, unless such infringement would also
have resulted solely from the use of the Topicflow Services without
their incorporation in, or combination, operation or use, with such
other products or services; (B) Modification of any Topicflow
Services other than by Topicflow or with Topicflow's express
written approval; (C) unauthorized use of the Topicflow Services;
or (D) Customer's indemnity in Section 8(b). THE FOREGOING IS
Topicflow's SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY
THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
- If the Topicflow Services are,
or in Topicflow's opinion are likely to be, claimed to infringe,
misappropriate, or otherwise violate any third-party Intellectual
Property Right, or if the Customer's use of any Topicflow Services
is enjoined or threatened to be enjoined, Topicflow may, at its
option and sole cost and expense:
- obtain the right for the
Customer to continue to use the affected Topicflow Services
materially as contemplated by this Agreement;
- modify or replace Topicflow
Services, in whole or in part, to seek to make the Topicflow
Services (as so modified or replaced) non-infringing while
providing materially equivalent features and functionality, in
which case such Modifications or replacements will constitute
Topicflow Services under this Agreement; or
- if Topicflow determines that
neither of the foregoing two options are reasonably available, then
this Agreement may be terminated by Topicflow and Topicflow's sole
liability, in addition to the indemnification obligations herein,
will be to refund prepaid unused Fees attributable to any Topicflow
Services that were to be provided after the effective date of
termination.by written notice to the Customer, terminate the
Services, in whole or in part, and require the Customer to
immediately cease all use of the terminated Services or part or
feature thereof and refund any unused prepaid Fees for the
terminated Services, if applicable.
THE FOREGOING
IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF
NONINFRINGEMENT, WHICH ARE DISCLAIMED.
- Customer
Indemnity. The Customer will defend,
indemnify and hold harmless Topicflow, and its officers, directors,
employees and agents (each, a "Topicflow Indemnitee") from and against
any and all Losses incurred by a Topicflow Indemnitee arising out of
or relating to any Action by a third party (other than an affiliate
of a Topicflow Indemnitee) that arise from or relate to: (i) Customer
Data; (ii) Customer's breach of any of Customer's obligations,
representations, warranties or covenants under this Agreement;
(iii) unauthorized use of the Services by the Customer or any
Permitted User; or (iv) use of the Services (or any part thereof)
by Customer or any Permitted User in combination with any third
party software, application or service. Customer will fully
cooperate with Topicflow in the defense of any claim defended by
Customer pursuant to its indemnification obligations under this
Agreement and will not settle any such claim without the prior
written consent of Topicflow.
- Indemnification
Procedure. Each Party will promptly
notify the other Party in writing of any Action for which such
Party believes it is entitled to be indemnified pursuant to this
Section 8. The Party seeking indemnification (the
"Indemnitee")
will cooperate with the other Party (the "Indemnitor") at the Indemnitor's
sole cost and expense. The Indemnitor will promptly take control of
the defense and investigation of such Action (although the
Indemnitor shall not settle any claim without the Indemnitee's
prior written consent) and will employ counsel of its choice to
handle and defend the same, at the Indemnitor's sole cost and
expense. The Indemnitee's failure to perform any obligations under
this Section 8(c) will not relieve the Indemnitor of its indemnity
obligations under this Section 8 except to the extent that the
Indemnitor can demonstrate that it has been materially prejudiced
as a result of such failure. The Indemnitee may participate in and
observe the proceedings at its own cost and expense with counsel of
its own choosing.
- Limitation of Liabilities
The Parties
acknowledge that the following provisions have been negotiated by
them and reflect a fair allocation of risk and form an essential
basis of the bargain and will survive and continue in full force
and effect despite any failure of consideration or of an exclusive
remedy:
- AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF
Topicflow IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR
OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE
SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT
GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF
ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS
MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL TOPICFLOW'S THIRD PARTY
SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED
TO THIS AGREEMENT.
- TYPE. TO THE MAXIMUM EXTENT
PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TOPICFLOW BE
LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL,
EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES;
(II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv)
USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR
THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL
INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF
OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF
ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN
IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH
DAMAGES.
- Term and Termination
- Term. This Agreement will
commence on the Effective Date and continue to be in effect for the
time period indicated on the Order Form (the "Initial Term"). The Term will
automatically renew for successive periods of time equal to the
Initial Term (each a "Renewal
Term"), unless either Party provides the
other Party with written notice of its intention not to renew not
less than 30 days prior to the end of the then current Term (each,
a "Renewal Term" and together with the Initial Term, the
"Term").
- Termination by
Topicflow. In addition and not
withstanding anything to the contrary in this Agreement, Customer's
and all Permitted Users' access to the Services may be terminated
or suspended by Topicflow at any time at Topicflow's sole
discretion. Topicflow may immediately terminate Customer's right to
use the Services or this Agreement: (1) if Topicflow believes that
Customer or any Permitted User has violated this Agreement; (2) if
Topicflow believes the use of Customer Data with the Services is
not in Topicflow's or its users' best interests; (3) if Topicflow
ceases to offer the Services; or (4) as required by applicable
laws.
- Termination. Notwithstanding any other Section of this Agreement,
Topicflow may, in its discretion, terminate the Agreement or any
Order Form at any time by providing at least 30 days advance
written notice to Customer. Topicflow may, in addition to other
relief, terminate this Agreement if the Customer commits a material
breach of this Agreement and fails to correct such breach within 30
calendar days after receipt of notice of such breach. Topicflow may
in its discretion terminate this Agreement effective immediately
upon delivery of notice of termination to Customer if Customer
becomes insolvent, ceases to conduct business in the ordinary
course, takes any step or proceeding available to Customer for the
benefit of insolvent debtors, or is subject to a proceeding for
liquidation, dissolution or winding up, or a receiver,
receiver-manager, liquidator or trustee in bankruptcy.
- Effect of
Termination. Upon expiration or
termination of this Agreement, Customer will immediately cease (and
ensure that all Permitted Users immediately cease) accessing or
using Topicflow Services and return any Topicflow Property in its
possession and certify in writing to Topicflow that the Topicflow
Property has been returned. Following the termination or expiration
of this Agreement, and subject to Topicflow's rights to retain
information, Topicflow may delete or otherwise render inaccessible
any Customer Data that remains in the hardware or systems used by
Topicflow to provide the Topicflow Services. No expiration or
termination will affect Customer's obligation to pay all Fees that
may have become due before such expiration or termination or
entitle Customer to any refund. All Fees due and payable and any
amounts due to Topicflow are immediately due and are to be
immediately paid by Customer to Topicflow. All Order Forms will
terminate upon the termination of this Agreement. No new Order
Forms may be agreed to or entered into by the Parties, upon the
termination of this Agreement.
- Survival. The following
Sections, together with any other provision of this Agreement which
expressly or by its nature survives termination or expiration, or
which contemplates performance or observance subsequent to
termination or expiration of this Agreement, will survive
expiration or termination of this Agreement for any reason: Section
3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section
5 (Fees and Payment), Section 6 (Confidential Information), Section
7 (Warranty and Disclaimer), Section 8 (Indemnities), Section 9
(Limitation of Liabilities), Section 10(e) (Survival), Section 11
(General Provisions), and Section 12 (Definitions).
- General Provisions
- Notices. Notices sent to either Party will be effective when
delivered in writing and in person or by email, one day after being
sent by overnight courier, or five days after being sent by first
class mail postage prepaid to the official contact designated by
the Party to whom a notice is being given. Notices must be sent:
(i) if to Topicflow, to the following Topicflow address and email
contact:
Address: 1055 WEST HASTINGS
STREET, Suite 1700, Vancouver BC V6E 2E9, Canada
Attention: Tony Angerilli, Topicflow Technologies
Email: support@topicflow.com.
and (ii) if to Customer, to the
current mailing or email address that Topicflow has on file with
respect to Customer. Topicflow may change its contact information
by posting the new contact information on the Website or by giving
notice thereof to Customer. Customer is solely responsible for
keeping Customer's contact information on file with Topicflow
current at all times during the Term.
- Assignment. Customer may not assign this Agreement to any third party
without Topicflow's prior written consent. Any purported assignment
or delegation by Customer in violation of this Section will be null
and void. Topicflow may assign this Agreement or any rights under
this Agreement to any third party without Customer's consent. This
Agreement enures to the benefit of and is binding upon the Parties
and their respective successors and permitted assigns.
- Governing Law and
Attornment. This Agreement and any
action related thereto will be governed by and construed in
accordance with the laws of the British Columbia and the federal
laws of Canada applicable therein, without regard to conflicts of
law principles. The Parties will initiate any lawsuits in
connection with this Agreement in Vancouver, British
Columbia, Canada, and irrevocably attorn to the exclusive personal
jurisdiction and venue of the courts sitting therein. The U.N.
Convention on Contracts for the International Sale of Goods will
not apply to this Agreement. This choice of jurisdiction does not
prevent Topicflow from seeking injunctive relief with respect to a
violation of Intellectual Property Rights or confidentiality
obligations in any appropriate jurisdiction.
- Export
Restrictions. Customer will comply
with all export laws and regulations that may apply to its access
to or use of the Topicflow Services. Topicflow makes no
representation or warranty that the Topicflow Services may be
exported without Customer first obtaining appropriate licenses or
permits under applicable law, or that any such license or permit
has been, will be, or can be obtained.
- Construction. Except as
otherwise provided in this Agreement, the Parties' rights and
remedies under this Agreement are cumulative and are in addition
to, and not in substitution for, any other rights and remedies
available at law or in equity or otherwise. The terms "include" and
"including" mean, respectively, "include without limitation" and
"including without limitation." The headings of sections of this
Agreement are for reference purposes only and have no substantive
effect. The terms "consent" or "discretion" mean the right of a
Party to withhold such consent or exercise such discretion, as
applicable, arbitrarily and without any implied obligation to act
reasonably or explain its decision to the other Party.
- Force
Majeure. Neither Party will be
liable for delays caused by any event or circumstances beyond that
Party's reasonable control, including acts of God, acts of
government, flood, fire, earthquakes, civil unrest, acts of terror,
strikes or other labour problems (other than those involving that
Party's employees), Internet service failures or delays, or the
unavailability or Modification by third parties of
telecommunications or hosting infrastructure or third party
websites ("Force
Majeure"). For clarity, a Force Majeure
event shall not excuse the Customer from its failure to pay Fees or
Customer's indemnities under this Agreement. This Section does not
apply to any of Customer's obligations under Sections 5, 6, or
8.
- Severability. Any provision of this Agreement found by a tribunal
or court of competent jurisdiction to be invalid, illegal or
unenforceable will be severed from this Agreement and all other
provisions of this Agreement will remain in full force and
effect.
- Waiver. A waiver of any provision of this Agreement must be
in writing and a waiver in one instance will not preclude
enforcement of such provision on other occasions.
- Independent
Contractors. Topicflow's
relationship to Customer is that of an independent contractor, and
neither Party is an agent or partner of the other. Neither Party
will have, and neither Party will represent to any third party that
it has, any authority to act on behalf of the other
Party.
- Entire
Agreement. This Agreement
constitutes the entire agreement between the Parties with respect
to the subject matter of this Agreement and supersedes all prior or
contemporaneous agreements, representations or other communications
between the Parties, whether written or oral.
- Amendments. No amendment,
supplement, modification, waiver, or termination of this Agreement
and, unless otherwise expressly specified in this Agreement, no
consent or approval by any Party, will be binding unless executed
in writing by the Party or Parties to be bound thereby.
NOTWITHSTANDING THE PRECEDING SENTENCE, TOPICFLOW MAY UNILATERALLY
AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN "AMENDMENT"),
BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE
OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY
TOPICFLOW, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE
THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED
ON THE WEBSITE (WHICHEVER IS THE EARLIER).
- Customer
Lists. With
Customer's prior consent, Topicflow may
identify the Customer by name and logo as a Topicflow customer on
Topicflow's website and on other promotional materials. Any
goodwill arising from the use of the Customer's name and logo will
inure to the benefit of the Customer.
- English
Language. It is the express wish of
the Parties that this Agreement and all related documents be drawn
up in English. C'est la volonté expresse des Parties que la
présente convention ainsi que les documents qui s'y
rattachent soient rédigés en anglais.
- Definitions
As used in this
Agreement, the following capitalized words have the meaning set out
below:
- "Customer
Data" means any data,
information, content, records, and files that Customer or any
Permitted User loads or enters into, transmits to, or makes
available to the Topicflow Services,
including but not limited to Personal Information, excluding
Aggregated Data and any other Topicflow Property.
- "Intellectual Property Rights"
means any and all registered and unregistered rights granted,
applied for or otherwise now or hereafter in existence under or
related to any patent, copyright, trademark, trade secret, database
protection or other intellectual property rights laws, and all
similar or equivalent rights or forms of protection, in any part of
the world.
- "Licensed Third Party Technology"
means third party technology that is licensed under separate
license terms and not under this Agreement.
- "Loss" or "Losses" means any and all
losses, damages, claims, actions, judgments, settlements, interest,
awards, penalties, fines, costs, or expenses of whatever kind,
including reasonable legal fees and the costs of enforcing any
right to indemnification hereunder and the cost of pursuing any
insurance providers.
- "Modifications" means modifications, improvements, customizations, patches,
bug fixes, updates, enhancements, aggregations, compilations,
derivative works, translations and adaptations, and
"Modify" has
a corresponding meaning.
- "Order Form" means an order form
that references this Agreement and that is executed by both Parties
or otherwise accepted by Customer.
- "Personal Information" means
information about an identifiable individual provided by Customer
under this Agreement.
- "Topicflow Services" means: (i)
the services through which Topicflow hosts and makes available the
Topicflow Services as described in an Order Form; and (ii) any
component or Modification of the services referred to in
(i).
- "Services" means the Topicflow
Services.
- "Website" means any websites used by Topicflow to provide the
Topicflow Services, including the websites located at
app.topicflow.com and
www.topicflow.com.
