Terms of Service

Schedule “A”
Agreement

THIS AGREEMENT GOVERNS ACCESS TO AND USE OF THE SERVICES BY INDIVIDUALS OR ENTITIES WHO PURCHASE OR OBTAIN A LICENSE TO USE THE SERVICES AND THEIR AUTHORIZED USERS (THE “CLIENT”). THIS IS A LEGAL AGREEMENT ENTERED INTO BETWEEN THE CLIENT AND TRACTION REC TECHNOLOGIES INC. (THE “COMPANY”), RELATING TO THE SERVICES.  BY: (I) CLICKING THROUGH THESE TERMS ELECTRONICALLY; OR (II) EXECUTION OF AN ORDER FORM, (III) USING THE SERVICES, THE CLIENT AND THE COMPANY MUTUALLY AGREE TO BE BOUND BY THIS AGREEMENT. IF THE CLIENT DOES NOT ACCEPT THIS AGREEMENT, IT IS NOT PERMITTED TO USE THE SERVICES. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT AS AN AGENT, EMPLOYEE OR REPRESENTATIVE OF THE CLIENT, THE INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO ACT ON THE CLIENT’S BEHALF.

For good and valuable consideration, Company and the Client agree as follows:

1. Definitions.  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 any party to this Agreement, any person, partnership, joint venture, corporation or other entity which directly or indirectly controls, is controlled by, or is under common control with such party where “control” (or variants of it) means the ability to direct the affairs of another by means of ownership, contract or otherwise.

(b) “Business Day” means any day except Saturdays, Sundays or statutory holidays during business hours.

(c) “Client Data” means any information (including, without limitation, personally identifiable information) provided, made available, or submitted by the Client in the SaaS Products.

(d) “Change Order” means any document signed by the parties that changes the scope of SaaS Products contained in an Order Form or Professional Services contained in a SOW.

(e) “Fees” means the fees payable by the Client to the Company and all applicable duties, levies, taxes, or similar governmental assessments of any nature, including but not limited to value added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction, if any.

(f) “Intellectual Property” means all systems, applications, software code (in any form, including source code, executable or object code), original works of authorship, algorithms, tool-kits, technology, widgets, formulae, programs, concepts, work-arounds, 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.  

(g) “Intellectual Property Rights” means all: copyrights, moral rights, rights associated with works of authorship, trademark rights, trade name rights, trade secrets, patent and industrial property rights (whether registered or not), and other proprietary rights in Intellectual Property.

(h) “License Term” means the License Term defined in the Order Form.

(i) “Order Form” means an ordering document specifying the SaaS Product to be provided hereunder that is entered into between the Company and the Client, and may include an online order of the SaaS Products through the Company’s website or a third-party website.

(j) “Professional Services” means the services described in a SOW.

(k) “SaaS Products” means: i) the Company’s software application(s), professional services, as described in an Order Form, offered on Company’s website, or otherwise provided to the Client 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 Company from time to time and including all written information, documentation, and materials provided to Client in respect of same; and ii) any software, materials or content made available in connection with the SaaS Product.

(l) “Statement of Work (SOW)” means any statements of work including any changes and modifications to them, that describe the Professional Services provided by the Company to the Client.

(m) “Third-Party Application” means third-party software (including Salesforce’s software), developed by third parties, including but not limited to third-party AppExchange software providers, Salesforce, and third-party services providers which may include APIs or similarly embedded third-party applications.

(n) “Users” means Client’s employees, consultants, contractors, and agents (i) who Client authorizes to access and use SaaS Products.

2. Use

(a) Use of SaaS Product.  SaaS Products are: (i) purchased as subscriptions for the License Term; (ii) subscriptions for SaaS Products may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (iii) any added subscriptions will terminate on the same date as the underlying subscriptions. Client agrees that its purchases of SaaS Products subscriptions are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.

(b) Usage Limits: SaaS Products are subject to usage limits specified in Order Forms or the applicable online purchasing portal. If Client exceeds a contractual usage limit, Client will pay for any excess usage in accordance with Section 3 (Fees).

(c) Client usage requirements. The Client will: (a) be responsible for Users’ compliance with this Agreement, Order Forms, and Change Orders; (b) be responsible for the accuracy, quality and legality of Client Data, the means by which Client acquired Client Data, Client’s use of Client Data with the SaaS Products, and the interoperation of any Third-Party Application with which Client uses SaaS Products; (c) use commercially reasonable efforts to prevent unauthorized access to or use of SaaS Products and notify Company promptly of any such unauthorized access or use; (d) use the SaaS Products in accordance with this Agreement, Order Forms, SOWs and Change Orders, and applicable laws and government regulations, (e) comply with terms of service of any Third-Party Applications with which Client uses SaaS Products; and (f) backup all Client Data on its own systems. Any use of the SaaS Products in breach of the foregoing by Client or Users that in the Company’s sole judgment threatens the security, integrity or availability of the SaaS Products, may result in immediate suspension of the SaaS Products to the Client, however, Company will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat before any such suspension.

(d) Restrictions. Client will not: (a) make any SaaS Products available to anyone other than Client or Users, or use any SaaS Products for the benefit of anyone other than Client, unless expressly stated otherwise in an Order Form or SOW; (b) sell, resell, license, sublicense, distribute, rent or lease any SaaS Products; (c) use a SaaS Products to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use a SaaS Products to store or transmit malicious code; (e) interfere with or disrupt the integrity or performance of any SaaS Products or third-party data contained therein; (f) attempt to gain unauthorized access to any SaaS Products or its related systems or networks; (g) directly or indirectly access or use the SaaS Products in a manner that circumvents any contractual usage limits, copies or uses the Company’s intellectual property beyond the scope of this Agreement or any Order Form, or attempts to reverse engineer, disassemble, decompile, modify, copy, create derivative works of, or gain unauthorized access to the SaaS Products or related systems or networks; (j) build a competitive product or service; (k) build a product or service using similar ideas, features, functions or graphics of the SaaS Products; (l) copy any ideas, features, functions or graphics of the SaaS Products; or (m) determine whether the SaaS Products are within the scope of any patent.

(e) Removal of Third-Party Materials. If Client receives notice, including from Company, that any third-party materials or Third-Party Application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or this Agreement, Client will promptly do so. If Client does not take required action, including deleting any third-party materials or Third-Party Applications, Client may have downloaded from the SaaS Products, in accordance with the above, or if in Company’s judgment continued violation is likely to recur, Company may disable the applicable SaaS Products and/or third-party materials or Third-Party Applications. If requested by Company, Client shall confirm deletion and discontinuance of use of such third-party materials or Third-Party Application in writing, and Company shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable.

(f) Usage Data.  The Company may collect and use anonymized information derived from Client use of the SaaS Products (“Non-Identifiable Aggregated Data”) for the Company's reasonable business purposes, including but not limited to improving the SaaS Products. Company may (i) make Non-Identifiable Aggregated Data publicly available in compliance with applicable law, and (ii) use Non-Identifiable Aggregated Data to the extent and in the manner permitted under applicable law.

(g) Auditing Rights and Required Records.  Company may audit the Client’s use of the SaaS Products. Client agrees to maintain complete and accurate records of Client’s use of the SaaS Products during the term of this Agreement and for one year after the termination or expiration of this Agreement. The Client agrees to provide Company with administrative access to its Salesforce environment for the audit. The audit may occur no more than once per calendar quarter. If the audit reveals any discrepancy with an Order Form or this Agreement, the Client shall pay the applicable additional fees at the then-current rates plus interest in accordance with Section 3(a) within five (5) business days of receiving the invoice. Company shall provide Client with at least five (5) business days' prior written notice before conducting any such audit and shall take reasonable measures to minimize any disruption to Client's operations. Such inspection and auditing rights will extend throughout the term of this Agreement and for one year after the termination or expiration of this Agreement.

(h) Client is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Client Data.  Client shall comply with all applicable laws, rules and regulations in using the SaaS Products.

(i) Professional Services:

a. Provision of implementation of Professional Services.  Company shall provide the any Professional Services to the Client in accordance with the terms of this Agreement and the applicable SOWs, subject to Client’s payment of all applicable fees as set forth in Section 3 (“Fees”) section of this Agreement.

b. Location and Travel.  If Company’s employees or subcontractors are required to travel in order to perform the Professional Services contemplated in a SOW, the Client shall reimburse Company for reasonable air travel and other business-related expenses, including a meal allowance incurred by Company in performing the Professional Services but only to the extent that the Client has expressly approved such expenses in writing in advance.

(j) Affiliates and Subcontractors. Company may use subcontractors to perform the Professional Services or provide the SaaS Products. Company shall be liable for the actions and omissions of its subcontractors to the same extent as if such actions and omissions were performed directly by Company, and for purposes of this Agreement, all work performed by Company's subcontractors shall be deemed work performed by Company. Company shall be Client's sole point of contact regarding the Professional Services and SaaS Products including with respect to payment of the Fees.

3. Fees

(a) The Client will pay all Fees in accordance with the applicable Order Form. Unless otherwise stipulated in an Order Form, the Company will invoice the Client, and the Client will pay the Fees in respect of such invoice on the date of such invoice. All amounts owing on account of past due invoices will incur interest at a rate of 1.5% per month (18% per annum equivalency), calculated monthly (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law) until they are paid in full. The Client shall be responsible for legal fees incurred by the Company for the collection of any unpaid invoices.

(b) Other than the Fees contained in an Order Form or SOW, the Company reserves the right to change pricing levels, discounts or fee structures at any time.

(c) Currency. Client shall make all payments hereunder in US dollars, unless otherwise agreed to by the Parties in an Order Form.

4. Confidential Information

(a) Each party (“Receiving Party”) agrees to protect all confidential and proprietary information disclosed by the other party (“Disclosing Party”) that is marked confidential or should reasonably be understood to be confidential (“Confidential Information”). The Receiving Party will (a) use Confidential Information only as necessary to perform its obligations under this Agreement, (b) not disclose it to any third party except to its personnel and service providers bound by obligations at least as protective, and (c) safeguard it with the same level of care it uses to protect its confidential information, and in no case less than reasonable care.

(b) Confidential Information does not include information that: (i) is or becomes public without breach; (ii) was known to the Receiving Party before disclosure; (iii) is independently developed without use of the Confidential Information; or (iv) is received from a third party without a duty of confidentiality.

(c) Nothing in this Agreement shall restrict the Receiving Party from retaining and using, subject to its obligations under applicable law, general knowledge, experience, know-how, and skills that do not contain or reflect Confidential Information (“Residuals”), provided such use does not result in a disclosure or misuse of Confidential Information.

(d) Upon termination of the Professional Services or provision of the SaaS Products, each party will immediately, upon written request from the other party, return to the other party or destroy all Confidential Information of the other party in its possession or control. Notwithstanding anything contained herein to the contrary, Receiving Party shall not be obligated to destroy Confidential Information to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data.

5. Intellectual Property

(a) SaaS Products

i. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company, its Affiliates, and its licensors reserve all right, title and interest in and to the SaaS Products, including all of their related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth herein.

ii. Access to and Use of Content. Client has the right to access and use applicable SaaS Products subject to the terms of applicable Order Forms, and this Agreement.

ii. License by Client to Company. Client grants Company, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Client Intellectual Property and Confidential Information, each as appropriate for Company to provide and ensure proper operation of the SaaS Products in accordance with this Agreement. If Client chooses to use a Third-Party Application with the SaaS Products, Client grants Company permission to allow the Third-Party Application and its provider to access Client Data and information about Client’s usage of the Third-Party Application as appropriate for the interoperation of that Third-Party Application with the SaaS Products. Subject to the limited licenses granted herein, Company acquires no right, title or interest from Client or its licensors under this Agreement in or to any Client Data, Third-Party Application or such program code.

iv. License by Client to Use Feedback. Client grants to Company and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Users relating to the operation of the SaaS Products.

(b) Professional Services

i. Client Intellectual Property. Client does not grant to Company any rights in or to Client’s intellectual property except such licenses as may be required for Company to provide the Professional Services.

ii. Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information.

iii. License for Contract Property. Subject to Client’s payment of fees due under an applicable SOW, Company grants Client a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for its internal business anything developed by the Professional Services for Client, under this Agreement (“Contract Property”). Company and Client each retains all right, title and interest in its respective intellectual property and Company retains all ownership rights in the Contract Property.

6. Third-party services

(a) The SaaS Products may interoperate with or provide access to software, content, or services provided by third parties (“Third-Party Applications”). Use of such Third-Party Applications is governed solely by the terms between Client and the applicable Third-Party Application provider. The Company does not warrant, support, or assume any liability for Third-Party Applications or the acts or omissions of their providers.

(b) The Client acknowledges that integration with Third-Party Applications may require additional fees, licenses, or terms.

(c) The Company shall not be responsible for any changes to, unavailability of, or impacts caused by such Third-Party Applications.

(d) To the extent permitted by law, the Company disclaims all liability and indemnification obligations for claims, losses, or damages arising out of or relating to Third-Party Applications, including their access to or processing of Client Data.

7. Warranties.

(a) Company hereby represents and warrants that: (i) it is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (ii) it has all requisite power and authority to execute and deliver the Agreement and to perform its obligations under the Agreement; (iii) it will provide all services in a professional and workmanlike manner consistent with then-current applicable industry standards and practices, (iv) it owns all rights, title, and interest in and to, and sole and exclusive ownership of the documentation and any material claimed by it to be its Intellectual Property which does not infringe or misappropriate any third party’s rights; and (v) it will comply with all laws, regulations and ordinances applicable to its performance under this Agreement.

(b) Disclaimer.  

i. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

ii. THE CLIENT ACKNOWLEDGES AND AGREES THAT THE COMPANY MAKES NO WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE RELATED TO THIRD-PARTY APPLICATIONS, INCLUDING BUT NOT LIMITED TO THIRD-PARTY APPLICATIONS: (a) INTEROPERABILITY WITH THE SERVICES; (b) ANY IMPLIED WARRANTIES OF MERCHANTABILITY; (c) FITNESS FOR A PARTICULAR PURPOSE; OR (d) NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8. Indemnities.

(a) Indemnification by Company. The Company shall defend, indemnify, and hold harmless the Client and its officers, directors, employees, and agents from and against any third-party claims, losses, damages, liabilities, costs, and expenses (including reasonable legal fees) arising out of: (a) allegations that the SaaS Products infringe or misappropriate any third party’s intellectual property rights; or (b) the Company’s gross negligence or willful misconduct in connection with its performance under this Agreement, provided Client: (a) promptly gives Company written notice of the claim, (b) gives Company sole control of the defense and settlement of the claim (except that Company may not settle any Claim Against Client unless it unconditionally releases Client of all liability); and (c) gives Company all reasonable assistance. The foregoing indemnity obligations shall not apply to the extent such claim arises from: (i) unauthorized modifications to the SaaS Products by the indemnified party; (ii) combination of the SaaS Products with non-Company products or services not authorized in writing by the Company; (iii) use of the SaaS Products not in accordance with this Agreement; (iv) resulting in whole or in part in accordance from the Client’s specifications Client Data; or (v) where the Client continues the allegedly infringing activity after being notified thereof, or after being informed of modifications that would have avoided the alleged infringement. The Company shall have no obligation to indemnify the Client for claims arising from or related to any Third-Party Applications, which are governed solely by the applicable third-party terms.

(b) If Company receives information about an infringement or misappropriation claim related to the SaaS Products or Company intellectual property contained in the SaaS Products, Company may in its discretion and at no cost to Client; (a) modify the SaaS Products or Company intellectual property contained in the SaaS Products so that they are no longer claimed to infringe or misappropriate (b) obtain a license for Client’s continued use of that intellectual property under this Agreement; or (c) terminate Client’s access to the portion of that SaaS Products and refund Client any prepaid fees the portion of the SaaS Products it can no longer use.

(c) Indemnification by Client. The Client shall defend, indemnify, and hold harmless the Company and its officers, directors, employees, and agents from and against any claims, losses, damages, liabilities, costs, and expenses (including reasonable legal fees) arising out of: (a) the Client’s or Users’ use of the SaaS Products in violation of this Agreement, applicable laws, or third-party rights; or (b) any Client Data or content provided by the Client.

(d) Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

9. Limitation of Liability

(a) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOODWILL, WORK STOPPAGE, LOSS OF INFORMATION OR DATA, OR LOSS OF REVENUE OR PROFIT, RESULTING FROM THE PROVISION OF OR RELIANCE UPON THE SERVICES, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE.

(b) EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, COMPANY’S AGGREGATE AND TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED AMOUNTS PAID OR DUE BY THE CLIENT TO COMPANY UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE CLAIM AROSE. EXCEPT AS SET FORTH UNDER APPLICABLE LAW, DAMAGES SET FORTH IN THIS SECTION ARE THE PARTIES’ SOLE EXCLUSIVE MONETARY REMEDY AND THE SOLE AND EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT ANY OTHER REMEDY FAILS OF ITS ESSENTIAL PURPOSE. FOR THE AVOIDANCE OF DOUBT, THE PARTIES MAY NOT LIMIT THEIR LIABILITY WHERE PREVENTED FROM DOING SO BY APPLICABLE LAW, IN SUCH CASE IT WILL BE LIMITED TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.

10. Term

(a) The Agreement, the Order Form, and SOW will automatically renew at the end of the License Term with any subsequent renewal Agreement thereof for a further one (1) year term, unless otherwise specified in the Order Form or SOW (“Renewal”). Subject to any renewal terms in the Order Form, pricing in the Order Form is subject to change for each Renewal. Notwithstanding anything to the contrary, any Renewal in which subscription quantity for any license has decreased from the prior License Term may result in re-pricing at Renewal without regard to the prior License Term’s per-unit pricing.  The Company will provide no less than 90 days’ prior written notice before the end of each term if it intends to increase the cost per license in the subsequent renewal term. The Client will provide the Company with no less than 45 days written notice before the end of the term if it does not want to renew for the subsequent term.

(b) Either party may terminate this Agreement and Order Form by providing written notice if the other party:

i. Is in material breach of this Agreement (including, without limitation, failure to pay the Fees) and such breach has not been cured within thirty (30) days, or such time as is mutually agreed upon by the parties, of the provision of notice of such breach to the breaching party; or

ii. 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.

iii. If any charge owing by Client under this or any other agreement for Professional Services or SaaS Products is past due, Company may, without limiting its other rights and remedies, and after providing 5 day’s prior written  notice, accelerate Client’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, stop providing Professional Services, and suspend Client’s access to the SaaS Products until such amounts are paid in full.

(c) Effect of Termination:

i. The Client will remain liable for any amount due under any applicable Order Form unless the termination is a result of the Company being in material breach of the Agreement.

ii. In the case of termination for the Company’s material breach of the Agreement, the Company will provide a pro-rated refund of any prepaid Fees.

iii. Upon termination of the SaaS Products, all rights and licenses granted to the Client for the SaaS Products shall immediately terminate.

(d) The Company may terminate the Client’s right to use the SaaS Products immediately if the SaaS Products are no longer available for use in conjunction with the Salesforce platform, if the SaaS Products are no longer able to access the information databases required for the SaaS Products, or if Salesforce terminates the Client’s access to Salesforce.

(e) Upon written request, both parties shall return any of the other party’s Intellectual Property and all Confidential Information in its possession or control within thirty (30) days of the date of termination. If no written request for a party’s Intellectual Property and Confidential Information is received within 30 days of the date of termination, each party shall delete the other party’s Intellectual Property and all Confidential Information in its possession or control.

(f) Client Data used by the SaaS Products. In the event of expiration or termination of the Order Form, Salesforce may not retain any Client Data that is stored in custom fields that form part of the SaaS Products. Client must request a copy of such Client Data directly from Salesforce the Client has a contract with Salesforce, or from the Company if it has purchased Salesforce licences from the Company, prior to termination or expiration of the Order Form.  

11. Protection of Personal Data

The Company will process Personal Data in accordance with its DPA which can be found https://tractionrec.com/legal/data-processing-agreement

12. Support

The Company will provide reasonable web-based and/or e-mail support services for technical support to the Client 6:00am to 5:00pm, Mondays to Fridays, Pacific Standard Time, excluding statutory holidays (“Normal Business Hours) on such terms and conditions as the Company reasonably determines.

13. General

(a) Survival. The covenants contained in this Agreement under Sections: 1 (Definitions), 2 (Use), 3 (Fees), 4(Confidential Information), 5 (Intellectual Property),  7 (Warranties), 8 (Indemnities),  9 (Limitation of Liability), 7 (Term), and 13(General) shall survive the termination of this Agreement 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.

(b) Name. The Company may use the name, logo, and identifying description of the Client in its list of Clients and the Company may generally make known the relationship between the Company and the Client.  In the event the Client has brand guidelines and notifies Company of those brand guidelines, Company will only use the Client’s name and logo following the Client’s brand guidelines.  

(c) Conflicts. If there is a conflict between the terms of an Order Form and this Agreement, this Agreement shall prevail unless explicitly overridden with a cross-reference to this provision and signed by both parties. For conflicts related to indemnification, Intellectual Property, limitation of liability, confidentiality, or data privacy, the terms of this Agreement will always prevail for that conflict.

(d) Force Majeure. Neither party to this Agreement shall be liable for any failure to comply with its obligations under this Agreement if the failure to comply is caused by or results from conditions or causes beyond its reasonable control including, but not limited to: a shortage of water, power, acts of God, war, terrorism, riots, fire, flood, pandemic, endemic, explosion, governmental controls or regulations, embargoes, wrecks or delays in transportation, labour disputes, civil insurrection, civil or military authority, inability to obtain necessary labour, materials of manufacturing faculties due to such causes or delays of subcontractors or supplies of each party in furnishing materials or supplies due to one or more of the foregoing causes. In the event of a force majeure, each party shall be allowed a reasonable period of time to fulfill the obligations under this Agreement, having regard to the applicable circumstances. An event of Force Majeure shall not relieve the Client of its payment obligations under this Agreement.

i. Dispute resolution. Court proceedings and other relief. A party may not start court proceedings about a Dispute until it has exhausted the procedures in this Section, unless the party seeks injunctive or other interlocutory relief.

ii. Continued Performance.  Both parties must continue performing their respective obligations and responsibilities under this Agreement while any Dispute is being resolved by this Section, unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.

iii. Equitable Remedies. The Parties agree that monetary damages may be an inadequate remedy for any breach or threatened breach of any provision of this Agreement concerning Confidential Information, Intellectual Property Rights or other matters for which equitable rights may be granted. Accordingly, such provision may be enforced by injunction or other order of a court of competent jurisdiction.

(e) Headings. The headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement. The term “this part” when used herein shall mean the entire part, including sections and subsections within that part, unless inconsistent with the context of such use.

(f) Currency.  Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in U.S. currency.

(g) Relationship of the Parties.  The parties are independent contractors.  This 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 this 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 this Agreement. A party may make known the relationship between Company and the Client, provided that such party does not disclose any Confidential Information of the other party.  

(h) Gender, Plural and Singular. In this 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 this Agreement may be made accordingly as the context requires.

(i) Alterations. No alteration or amendment to this Agreement shall take effect unless it is in writing and signed by the parties.

(j) Proper Law of Agreement. This Agreement shall be governed by the laws of British Columbia, Canada, without regard to conflict of laws principles. Each party irrevocably submits to the exclusive jurisdiction of the courts in Vancouver, British Columbia. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL.

(k) Invalidity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision, and any such invalid or unenforceable provision shall be deemed to be severable.

(l) Notices. Any notice, payment or other communication required or permitted to be given or served pursuant to this Agreement shall be in writing and shall be delivered personally or forwarded by registered mail to the party concerned at the address specified in this Agreement, or to any other address as may from time to time be notified in writing by any of the parties. In the case of the Company, any such notices must also be carbon copied to legal@tractionrec.com. Any notice, payment or other communication shall be deemed to have been given on the day delivered if delivered by hand, and within four Business Days following the date of posting, if mailed; provided that if there shall be at the time or within four Business Days of mailing a mail strike, slow-down or other labour dispute that might affect delivery by mail, then the notice, payment or other communication shall be effective only when delivered.

(m) Entire Agreement. The provisions of the Agreement and Order Forms constitute the entire agreement between the parties and supersede all previous communications, representations and agreements, whether oral or written, between the parties with respect to the subject matter of the Agreement and such Order Forms.

(n) No Strict Construction.  The language in all parts of this Agreement shall in all cases be construed as a whole and neither strictly for, nor strictly against, any of the parties to this Agreement.

(o) Assignment.  Except with written consent of the other party, the Company may assign any of its respective benefits, obligations or liabilities under or in respect of this Agreement.

(p) U.N. Convention. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to the Agreement and shall not apply to any Order Form issued in connection herewith.

(q) Enurement. This Agreement shall enure to the benefit of and be binding upon the parties and, except as otherwise provided or as would be inconsistent with the provisions of this Agreement, their respective heirs, executors, administrators, successors and permitted assigns.

(r) 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 the same instrument.  This Agreement may be executed and delivered electronically.  An executed copy of this Agreement delivered electronically will constitute valid execution and delivery.