THIS IS A LEGAL AGREEMENT BETWEEN TRACTION REC TECHNOLOGIES INC. (“TRACTION REC” or ”REC”) AND THE CLIENT (“CLIENT” or “YOU”). THIS AGREEMENT GOVERNS CLIENT’S USE OF THE APPLICATION. IF CLIENT DOES NOT AGREE TO THESE TERMS AND CONDITIONS (THE “TERMS”), CLIENT IS NOT AUTHORIZED TO USE THE APPLICATION. CLIENT’S USE OF THE APPLICATION SHALL CONSTITUTE CLIENT’S AGREEMENT AND INTENT TO BE BOUND BY THE TERMS. THE PERSON AGREEING TO THIS AGREEMENT REPRESENTS AND WARRANTS THAT THEY ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT USING THE APPLICATION.
In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Traction Rec and Client agrees as follows:
1. Definitions. The following terms shall have the following meanings. All capitalized terms not otherwise set out in this section shall have the meaning as set out in the section of this Agreement in which they are defined
a. "Affiliate" means, with respect to a party, any person, partnership, joint venture, corporation, or other entity, that directly or indirectly controls, is controlled by, or is under common control with such party.
b. “Aggregate Information” means information about Your activities on or in connection with the Application that typically cannot be used to identify, locate, or contact You including information regarding the frequency of use of the Application, components of the Application most frequently accessed, and browser types used by You.
c. "Agreement" means the agreement between Traction Rec and You for the provision of the Application and includes the herein terms and conditions.
d. "Application” means: i) Traction Rec’s software application currently described as “Traction Rec”, including any updates, upgrades, patches, technology, material, modifications, bug fixes, enhancements, data, features, related website, related technologies, and contents, as it may be added or removed by Traction Rec from time to time and including all written information, documentation, and materials provided to You in respect of same; and ii) any software, materials or content made available in connection with the Application.
e. "Applicable Law” means any local, state, provincial, federal and foreign laws or orders of any governmental or regulatory authority applicable to the Application and Client’s use thereof, including without limitation all privacy laws, all applicable legislation regulating use and misuse of electronic messages and marketing e-mails, the California Consumer Privacy Act (CCPA), laws for the protection of Personal Information, and Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (“General Data Protection Regulation”), to the extent applicable;
f. “Business Day” means any day except Saturdays, Sundays or statutory holidays in British Columbia, Canada;
g. "Fees" means the aggregate of all fees payable by You to Traction Rec for the use of the Application in accordance with this Agreement, plus all duties, levies, and taxes in relation to such fees.
h. "License” means a license to use the Application that permits You to not only view but also modify the information in each applicable Traction Rec in Your Salesforce instance.
i. "Intellectual Property" means all systems, applications, software code (in any form, including source code, executable or object code), algorithms, tool-kits, technology, widgets, formulae, programs, concepts, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes.
j. "Intellectual Property Rights" means all copyrights, moral rights, rights associated with works of authorship, trademark rights, trade name rights, trade secret rights, patent and industrial property rights (whether registered or not), and other proprietary rights, in Intellectual Property.
k. “Personal Data” means any information relating to an identified or identifiable natural person (“data subject”). An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
l. "Personal Information" means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
m. “Personal Information” means any information about an identified or identifiable individual, including, without limitation, data or information entered into the Application by Client or by Client’s customers or clients, that has not been made publicly available and includes but is not limited to Personal Data and Sensitive Data;
n. “Processing” means any operation or set of operations which is performed on Personal Information or on sets of Personal Information, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
o. “Salesforce” means the Salesforce.com software as a service (SaaS) platform, including, without limitation, the Salesforce software;
p. “Security Incident” means accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Information;
q. “Sensitive Data” means (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), (c) employment, financial, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords; (f) date of birth; (g) criminal history; (h) mother’s maiden name; and (i) any other information that falls within the definition of “special categories of data” under the General Data Protection Regulation or any other applicable law relating to privacy and data protection;
r. “Order Form” means the form signed by the Client prior to downloading the Application; and
s. “Term” as defined in Section 13(a) for Initial Term and Renewal Term.
t. "You" or "Your" means the party entering into this Agreement with Traction Rec and includes the person, entity, or organization having control of the use of the Application and any successor of same. “You” or “Your” also means, in the case of a person, entity, or organization registering for a free trial, that person, entity, or organization.
2. Your Use and License. You shall only use the Application in and for Your own internal purposes and business operations. You may only use the Application during the term of this Agreement. You may not use the Application as a service for any third party. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the Application, in whole or in part, is granted except as expressly provided by this Agreement. You shall not modify, copy, create derivative works from, reverse engineer, decompile or disassemble the Application. Nothing in this Agreement will entitle You to access or use the source code of the Application. You shall not download or use the Application if Your download, installation or use of the Application is prohibited under applicable laws.
3. Your Responsibilities. You are responsible for all of Your use of the Application. You shall:
a. Use best efforts to prevent unauthorized access to, or use of, the Application, and notify Traction Rec promptly of any such unauthorized access or use; Client acknowledge and agrees that Traction Rec is not be liable for any loss or damage arising from unauthorized access to, or use of, the Application from Client’s account
b. comply with all Applicable Law;
c. comply with all anti-corruption or antibribery laws including but not limited to the Foreign Corrupt Practices Act of 1977, the U.K Bribery Act 2010 and the regulations of the Office of Foreign Assets Control ("OFAC') of the U.S. Department of the Treasury.
d. ensure that Client has the necessary consents required for Processing Personal Information.
e. not use the Application to engage in any deceptive, misleading, illegal or unethical marketing activities or activities that otherwise may be detrimental to Traction Rec
f. not collect, use, or disclose any Personal Information in connection with the Application, unless Client has obtained all necessary consents under all Applicable Law to do so;
g. not attempt to gain unauthorized access to the Application;
h. not upload to, or store within, the Application any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights;
i. not use the Application to store or transmit any viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines or code that may damage or detrimentally interfere with the Application or any data or Personal Information maintained on or in connect with the Application; and
j. not send or (cause to send) Sensitive Data through the mail or text message relay functionalities available through the Application, and will be liable for any Security Incident in connection with the sending of Sensitive Data through such functionalities by Client;
k. be responsible for (1) all hardware licenses needed to access or use the Application, (2) internet access (3) all third-party software required for the Application.
l. Client has all necessary consents and licenses to use its materials, including third party intellectual property; and
m. procure the appropriate licenses from Salesforce to be used in accordance with the related terms and conditions.
4. Traction Rec’s Obligations.
(a) Traction Rec will provide the Application to the Client in accordance with high industry standards.
(b) Support. Traction Rec will provide reasonable web-based, and / or e-mail technical support to the Client during normal business hours (Pacific Standard Time) on such terms and conditions as Traction Rec reasonably determines.. Traction Rec will make reasonable efforts to respond to Your support queries within one business day of Traction Rec’s receipt of a support query. Support is limited to the Application and does not include assistance with Salesforce Platform issues or errors, customizations, non-Traction Rec applications or hardware support.
(c) In the event that any request, correspondence, enquiry or complaint from an individual, regulatory or third party is made directly to Traction Rec in connection with Traction Rec’s processing of Personal Information, Traction Rec shall promptly inform Client, providing details of the same, to the extent legally permitted. Unless legally obligated to do so, Traction Rec shall not respond to any such request, inquiry or complaint without Client’s prior consent except to confirm that the request relates to Client to which Client hereby agrees to.
5. Changes and Upgrades. Traction Rec may, at its sole discretion, update, improve, modify or add new functionality to the Application (“Included Upgrades”) at no additional cost during the Term. In addition, Traction Rec may offer new functionality in the form of additional packages for an additional fee (“Additional Upgrades”). In the event any Included Upgrades materially changes either the administrator or user experience,Traction Rec will provide reasonable prior notice, provided however, that Traction Rec may make a change with shorter or no notice if the change is required by law or to fix a security vulnerability. In the event of Additional Upgrades are made available. The terms of this Agreement apply to Additional Upgrades, Included Upgrades. In the Event terms of this Agreement need to be changed during an Additional Upgrade or Included Upgrade, Traction Rec reserves the right to modify these Terms and Conditions per section 14 (Changes)
6.Confidentiality and Use of Confidential Information.
(a) “Confidential Information” means any information that is of a confidential nature that is disclosed by one party to this Agreement (the “Disclosing Party“) to the other party to this Agreement (the “Receiving Party “), including, but not limited to the Disclosing Party’s business information, customer information, trade secrets (including all Intellectual Property contained within the Application), and Personal Information. Confidential Information does not include any information that is disclosed by one party to another party if that information:
i. is at the time of disclosure in the possession of the Receiving Party or any of its Affiliates and was obtained without an obligation of confidence;
ii. is independently developed by the Receiving Party or any of its Affiliates without any use of or reference to the Disclosing Party’s Confidential Information;
iii. is or becomes publicly available without breach of any obligation of confidence;
iv. is acquired by the Receiving Party from a third party who provided the information without breaking any express or implied obligations or duties to the Disclosing Party; or
v. is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party’s prior written consent.
(b) The Receiving Party will take all reasonable precautions necessary to safeguard the confidentiality of the Confidential Information. The Receiving Party will not make any unauthorized use of the Confidential Information or disclose, in whole or in part, any part of the Confidential Information to any individual or entity, except as otherwise permitted hereunder or to those of the Receiving Party’s employees or consultants who require access for the proper operation of the Application and only on the condition that such employees or consultants agree to comply with the use and nondisclosure restrictions applicable to the Confidential Information under this Agreement. The Receiving Party acknowledges that any unauthorized use or disclosure of Confidential Information may cause irreparable damage to the Disclosing Party. In all cases, the Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall the Receiving Party use less than a reasonable degree of care.
(c) Notwithstanding the foregoing, Client acknowledges and agrees as follows:
i. that Traction Rec may access or disclose Client’s Confidential Information if: (i) Traction Rec in good faith believes that disclosure is necessary to comply with any Applicable Law, legal process or government request, (ii) to enforce the Agreement; (iii) to protect the security or integrity of the Application, or (iv) to respond to an emergency which Traction Rec believes requires Traction Rec to disclose data to assist in preventing a death or serious bodily injury. In each of the foregoing cases, Traction Rec will disclose only such Confidential Information as Traction Rec believes, in good faith, is necessary; and
ii. if, but only to the extent that Client authorizes the use of the Application in connection with Third Party Applications, Client consents to Traction Rec releasing to Third Party Developers any Confidential Information entered into the Application reasonably required by such Third Party Developers for the proper use of such Third Party Applications, and such Third Party Developer’s use of such Confidential Information shall be governed by Client’s agreement with such Third Party Developers.
a. Client shall defend, indemnify, and hold Traction Rec and its directors, officers, employees, and Affiliates harmless against any loss, damage, or cost (including reasonable legal fees) incurred in connection with a claim, demand, suit, or proceeding alleging that Client’s use of the Application has: (i) harmed any other third party; (ii) infringes upon the privacy rights of a third party or is in violation or alleged violation of any Anti-Spam Legislation or does not comply with applicable local, state, provincial, federal and foreign laws, including without limitation all Applicable Laws in marketing activities; (iii) if there is an intellectual property infringement claim that is the result of any materials provided by the Client or on the Client’s behalf to Traction Rec; or (iv) unauthorized access to Traction Rec’s Salesforce instance . Client shall notify Traction Rec as soon as reasonably practicable as to any such claim, but in no less than one Business Day. Traction Rec shall provide reasonable information, cooperation and assistance in defending any such claim at the Client’s cost.
8. Third Party Developers. The Application may include features that permit Client to connect the Application to third party applications (“Third Party Applications“) developed by third parties (“Third Party Developers“). Client acknowledges and agrees that: (a) Traction Rec is not such Third Party Developers and is not an Affiliate of such Third Party Developers; and (b) Traction Rec makes no representations or warranties regarding Third Party Developers, Third Party Applications, or their use of Confidential Information, to anyone, express, implied or statutory (including warranties of design, operation, or fitness for any use or purpose). No representation or warranty by such Third Party Developers is binding on Traction Rec nor shall breach of such representation or warranty relieves Client of Client’s obligations to Traction Rec. Third Party Developers may require Client to enter into license agreements or pay license fees for the use of their Third Party Applications, which, unless expressly set out herein, are not included in the Fees.
9. Outage Policy. YOU ACKNOWLEDGE AND UNDERSTAND THAT TRACTION REC DOES NOT WARRANT THAT THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE AND THAT TRACTION REC MAY OCCASIONALLY EXPERIENCE DISRUPTION DUE TO INTERNET DISRUPTIONS, SALESFORCE DISRUPTIONS, THIRD PARTY PROVIDER DISRUPTIONS, OR DISRUPTIONS THAT ARE NOT WITHIN TRACTION REC’S CONTROL. ANY SUCH DISRUPTION SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT.
10. Ownership. All Intellectual Property Rights in the Application or made available or disclosed to You in the provision of the Application are and shall remain the sole and exclusive property of Traction Rec and except for the limited license to use the Intellectual Property as part of Your use of the Application in accordance with this Agreement (the " License "), no right, title, or interest is granted in the Intellectual Property. Traction Rec and its Affiliates shall own all rights, title and interest, including all Intellectual Property Rights, in and to any improvements to the Application or any new programs, upgrades, modifications or enhancements thereto, even when such refinements and improvements result from Your requests or comments. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Traction Rec or its Affiliates by virtue of this Agreement or otherwise, You hereby transfer and assign to Traction Rec all rights, title, and interest which You may have to such refinements and improvements.
11. Fees and Payment Terms. You shall pay all Fees promptly when due in accordance with the following:
a. Client shall pay all Fees on the Effective Date and on the commencement of each renewal Term.
b. Fees are based on the number and type of licenses being used to access the Application, based on the subscription package selected by You from the packages available, as they may be updated from time to time.
c. To the extent that Fees are billed and paid through a third party credit card processor, such third party’s standard terms and conditions shall apply;
d. Failure to pay Fees shall constitute a material breach of this Agreement; and Traction Rec may, without limiting our other rights and remedies, suspend Client’s right to use the Application without notice if the Client fails to pay outstanding Fees. Traction Rec shall not be liable for any damages incurred by the Client if Traction Rec chooses to exercise its rights under this provision.;
e. All outstanding amounts owing under this Agreement will incur interest at a rate of 1.5 percent per month (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law), commencing on the due date, calculated monthly, until such time as they are paid in full;
f. You are solely responsible for payment of any goods and service taxes, sales taxes, value added taxes, and excise taxes, as applicable (but excluding any taxes attributable to Traction Rec’s income), resulting from your use of the Application;
g. Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in U.S. Dollars (USD);
h. If any charge owing by You is 30 days or more overdue, Traction Rec may, without limiting our ot her rights and remedies, suspend Application until such amounts are paid in full. In addition, if You have an agreement directly with Salesforce, and Salesforce suspends services to You due to Your breach of that agreement, any Application installed in the same Salesforce instance will also be inaccessible and Traction Rec will not thereby be deemed to be in breach of this Agreement.
i. Fees contained in the Order Form are for the Initial Term and are subject to change for each renewal Term.
j. Traction Rec is not responsible for the Client’s inability to use the Application if Salesforce suspends services to Client.
k. If the Client issues a purchase order in connection with an Order Form, such purchase order shall be solely for the Client’s internal administrative purposes and to facilitate payment. In no event shall the terms of such purchase order modify or become part of this Agreement or become binding on Traction Rec even if Traction Rec signs an acknowledgment copy of such purchase order.
12. Term and Termination.
a. This Agreement shall commence on the earlier of: (1) Effective Date indicated on the Order Form ("Effective Date") or (2) delivery or download or first use of the Application and shall continue for the term as indicated in the Initial Subscription Term section of the Traction Rec Order Form (the "Initial Term ") unless otherwise terminated earlier by either party pursuant to this Agreement. At the end of the Initial Term (and each Renewal Term thereafter), this Agreement will automatically renew for subsequent one year subscription terms (“Renewal Term”). Notwithstanding the foregoing, the Fees shall be subject to change for each renewal Term. Traction Rec shall provide the Client with notice of any increase to the Fees prior to each renewal Term.
b. At the end of the Initial Term, either party may terminate this Agreement without cause upon providing no less than sixty (60) days written notice to the other. Notwithstanding the Initial Term, Traction Rec may also terminate this Agreement for any reason with no less than sixty (60) days’ written notice.
c. Either party may terminate this Agreement for cause immediately upon a material breach of this Agreement by the other party if the material breach is not remedied within 30 days of the defaulting party receiving written notice of the breach. Notwithstanding the foregoing, either party may terminate this Agreement immediately if the other party is: (a) is or becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law, has a receiver, administrator or manager appointed, makes an assignment for the benefit of creditors or takes the benefit of any applicable law or statute in force for the winding up or liquidation of corporations; or (b) is in breach of its confidentiality obligations under this Agreement.
d. Except in the case of termination by You for cause, termination under this part shall not relieve You of Your obligation to pay any Fees accrued or payable to Traction Rec under the terms of this Agreement and You shall remain obligated to pay all Fees owed for the remainder of any subscription term(s) for the Application, all of which Fees shall become immediately due and payable in full.
e. Traction Rec may terminate this Agreement immediately in the event that the Application is no longer available for use in conjunction with Salesforce’s services and, in such a case, Traction Rec will provide the Client a prorated refund of any prepaid Fees paid by the Client to Traction Rec for the remainder of the Term;
f. Upon the termination or expiration of this Agreement, You shall immediately discontinue all use of the Application and You shall delete or destroy all electronic and physical stand-alone copies of the Application.
13. Limitation of Liability and Disclaimers
a. Disclaimer Of Warranties. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN: (1) THE APPLICATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND; AND (2) TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRACTION REC AND ITS AFFILIATES EACH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE APPLICATION, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE APPLICATION, WHETHER MADE BY EMPLOYEES OF TRACTION REC OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY TRACTION REC FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF TRACTION REC WHATSOEVER. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, YOU SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE.
b. UNDER NO CIRCUMSTANCES SHALL: (i) EITHER PARTY OR IT’S AFFILIATES BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR THE INFRINGEMENT OF INTELLECTUAL PROPERTY; OR (II) THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY YOU TO TRACTION REC UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE CLAIM AROSE.
14. Changes. Traction Rec reserves the right to modify these terms and conditions at any time, which modified terms and conditions will supersede prior versions. Unless otherwise provided, any modifications to the terms and conditions will be effective upon thirty (30) business days after You have been notified or they have been published, whichever occurs first. In the event of material changes to this Agreement, Traction Rec will provide notice to You, either through the Application, by way of an electronic (including e-mail) notification, or by other reasonable means prior to the effective date of any such material changes, and should You elect not to agree to such material changes, Your sole remedy shall be to terminate this Agreement in accordance with its terms. Your continued use of the Application will be deemed acceptance thereof.
a. Proper Law. This Agreement shall be governed by and construed in accordance with the laws of the province of British Columbia and the parties agree to attorn to the exclusive jurisdiction of British Columbia.
b. Arbitration. All disputes arising out of or in connection with the Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.
c. Survival. The covenants contained in this Agreement under Sections 6 (Confidentiality), 8 (third party developers), 10 (Ownership), 11 (Fees and Payment Terms), 13 (limitation of liability) and this Section 15, and this part shall survive the termination of the provision of the Application and the Client hereby acknowledges and agrees that the provisions of and all restrictions contained in this Agreement are reasonable and are necessary for the protection of the parties’ legitimate interests and proprietary rights and are an essential condition of this Agreement.
d. Headings. The headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement.
e. Assignment. This Agreement may not be transferred or assigned by either party without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may transfer or assign this Agreement (1) to an Affiliate; (2) in the event of a sale, merger or other transfer of substantially all of its business and assets; or (3) in the event of a sale or transfer by Traction Rec of the Application and substantially all Traction Rec’s business components required to operate the Application, without the other party’s consent. The terms and conditions of this Agreement shall enure to the benefit of and be enforceable by the parties hereto and their permitted successors and assigns.
f. Notice. Any notice or communication from one party to the other required or permitted to be given hereunder shall be in writing and either personally delivered, sent by postal service, sent via courier (with evidence of delivery in any case), or, in the case of notice of changes to these terms and conditions, sent by e-mail or other electronic means. All notices shall be in English and shall be effective upon actual receipt, except for notices sent by e-mail or other electronic means, which shall be deemed to have been received the day after such notices are sent. Unless otherwise requested, all notices to Traction Rec shall be sent to the attention of "Legal" and may be sent by registered mail or courier to #500 - 2700 Production Way, Burnaby, B.C. V5A 0C2. Unless otherwise requested, all notices to You shall be sent to the attention of "Legal" and may be sent by registered mail or courier to the address provided by You at the time of entering into this Agreement, or such other address as you may provide, in writing, to Traction Rec.
g. Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to, earthquake, pandemic, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion , act of terrorism, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including Internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.
h. Waiver. The waiver by any party hereto of a breach or a default of any provision of this Agreement by another party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
i. Relationship. The Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of the Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in the Agreement.
j. Gender, Plural and Singular. In the Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, "or" is not exclusive" and "including" is not limiting, whether or not such non-limiting language (such as "without limitation" or "but not limited to") is used with reference to it, and modifications to the provisions of the Agreement may be made accordingly as the context requires.
k. Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter herein. This Agreement supersedes all previous communications between the parties, whether written or oral, with respect to the subject matter herein.
l. U.N. Convention. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to these Terms and Conditions and shall not apply to any purchase order issued in connection herewith.
m. Counterparts. This Agreement may be signed by the parties in as many counterparts as may be necessary, each of which so signed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. This Agreement may be executed and delivered electronically. An executed copy of this Agreement delivered by facsimile or electronic mail will constitute valid execution and delivery