This service agreement (the “Agreement“) is an agreement between the person or entity visiting, browsing, accessing or otherwise using (the term “use” will refer to any of the foregoing) the Offering (“Customer“) and Flyp Technologies Inc., d/b/a Uberflip with offices at 135 Liberty Street, Suite 401, Toronto, Ontario M6K 1A7 (“Uberflip“, together with Customer, the “Parties” and each, a “Party“), and is entered into as of the earlier of: (A) the date Customer first uses any element of the Offering; and (B) the date Customer agrees to be bound by the terms and conditions set out herein (the “Effective Date“).
BY USING ANY ELEMENT OF THE OFFERING (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT IT 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 15(K). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE OFFERING, INCLUDING USE OF ANY ELEMENT THEREOF. CUSTOMER REPRESENTS AND WARRANTS TO UBERFLIP THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE OFFERING ON BEHALF OF ANOTHER PERSON OR ENTITY, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO UBERFLIP THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THIS AGREEMENT.
(a) “Agreement” has the meaning set out in the introductory paragraph of this Agreement.
(b) “Billing Period” means the date as set out in the Order Terms or the Website.
(c) “Customer Data” has the meaning ascribed to it in Section 4(b), and includes Personal Information (if any).
(d) “Derivative Data” means all modifications, compilations, derivative works and results from processing (including analyses, usage statistics and patterns, datasets, databases, reports, recommendations and visual representations) created or developed from Customer Data or on the basis of Customer’s use of the Services by Uberflip or through the Platform in connection with the Services.
(e) “Effective Date” has the meaning set out in the introductory paragraph of this Agreement.
(f) “Fees” means the fees and other charges that apply to Customer’s initial setup and ongoing access to and use of the Services, payable in the amounts and frequency indicated on the Website, in the Order Terms (if applicable) or otherwise communicated by Uberflip to Customer from time to time (including through the Website).
(g) “Offering” means, collectively, the Platform and the Services.
(h) “Order Terms” means, if applicable, the order terms provided to Customer which may supplement or modify the terms and conditions set forth herein.
(i) “Personal Information” means information about an identifiable individual transferred by Customer or its permitted agents to Uberflip hereunder, and any personal information derived or otherwise create by Uberflip in connection therewith.
(j) “Platform” means, collectively, the Website and all systems of Uberflip and Uberflip’s third-party suppliers that are used in the provision of the Services.
(k) “Services” means the services to be provided by Uberflip to Customer, as described on the Website, as may be amended or supplemented by Uberflip from time to time in its sole discretion and without notice.
(l) “Website” means, collectively, the Uberflip websites, including the website located at: http://www.uberflip.com.
(m) “Term” means the duration of this Agreement.
(b) Provisioning of the Platform. Uberflip will: (i) provide to Customer basic support through the Website as described more fully in Section 8 (Customer Support); and (ii) use commercially reasonable efforts to make the Platform reasonably available with minimal downtime; except for: (A) downtime and scheduled upgrades (as described more fully below); and (B) unavailability caused by circumstances beyond Uberflip’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, Internet service provider failures or delays, or the unavailability of any third-party provided goods or services.
(c) Platform Updates and Scheduled Downtime. Uberflip may update the functionality and user interface of the Platform from time to time in its sole discretion as part of its ongoing mission to improve the Offering and the use of the Offering by Uberflip’s other customers. Uberflip may from time to time schedule downtime for maintenance and upgrades without prior notice.
(d) No Responsibility for Data Storage and Backup. Uberflip cannot guarantee that the Platform will provide regular data backups of any Customer Data stored on it. It is Customer’s responsibility to backup onto Customer’s own local system all Customer Data, including all data, files and records that Customer submits to Uberflip.
3. License Grants.
(a) License Grants by Uberflip. Subject to the terms and conditions of this Agreement and Customer’s compliance therewith, Uberflip grants to Customer: (i) a revocable, non-exclusive, non-transferable license during the Term to access and use the Platform over the Internet and through the then available standard interface for the Platform in connection with receiving the Services in accordance with this Agreement; and (ii) a revocable, perpetual, non-exclusive, non-transferable license to copy, use, reproduce and modify any Derivative Data provided to Customer for Customer’s internal business purposes only.
(b) License Grant by Customer. Subject to the terms and conditions of this Agreement, including Uberflip’s confidentiality obligations, Customer grants to Uberflip a transferrable, sublicenseable, royalty-free, fully paid-up, worldwide license to copy, use, reproduce, modify, develop, access, collect and store the Customer Data solely for the purpose of providing the Services.
4. Reservation of Rights.
(a) Rights Reserved by Uberflip. Uberflip expressly reserves all rights in the Services, the Platform, all Derivative Data and all materials (other than Personal Information) provided by Uberflip hereunder and not specifically granted to Customer (“Uberflip Property”). All right, title and interest in the Uberflip Property, as well as any update, modification, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Uberflip (or Uberflip’s third party suppliers, as applicable). The Uberflip Property is licensed on a subscription basis on the terms and conditions of this Agreement and not “sold” to Customer.
(b) Rights Reserved by Customer. Customer expressly reserves all rights in any data, information, records and files that Customer (or any User) loads, transmits to or enters into the Platform, including data that the Platform is configured to obtain from Customer’s servers or systems or from third parties on Customer’s behalf, but excluding any Derivative Data (the “Customer Data”), subject to the license that Customer grants Uberflip in accordance with the provisions of this Agreement, and provided that Customer does not acquire any intellectual property rights in the Services, the Platform, any Derivative Data or any elements of any of the foregoing.
(b) Internet Security Disclaimer. As between Uberflip and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer understands that the technical processing and transmission Customer Data is fundamentally necessary to use of the Services. Therefore, Customer expressly consents to Uberflip’s storage of Customer Data, which will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Uberflip. Uberflip will endeavour to provide industry-standard secure data transmission channels for use by Customer to upload, enter or transmit Customer Data to the Services, for example through the use of the HTTPS protocol. However, despite such efforts, Customer acknowledges and understands that Customer Data may be accessed by unauthorized persons when communicated across the Internet, network communications facilities, telephone or other electronic means. Uberflip is not responsible for any Customer Data which is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned or operated by Uberflip, including, the Internet, third party websites, and Customer’s local network. Customer agrees that Uberflip is not in any way responsible for any interference with Customer’s use of or access to the Services or security breaches arising from or attributable to the Internet, and Customer waives any and all claims against Uberflip in connection therewith.
(c) Limitation, Suspension or Termination of Access. In addition to any other suspension or termination rights of Uberflip pursuant to this Agreement, certain extraordinary circumstances may require Uberflip to suspend, terminate or limit (as appropriate and as determined in Uberflip’s sole discretion) Customer’s access to or use of the Platform or the Services, or any component thereof, without notice in order to: (i) prevent any misuse or abuse of the Offering or other Uberflip Property; (ii) prevent any damage to, or degradation of the integrity of Uberflip’s systems or Uberflip Property; (iii) comply with any law, regulation, court order, or other governmental request or order; or (iv) otherwise protect Uberflip from potential legal liability or harm to its reputation or business. Uberflip also reserves the right to approve, reject, cancel or remove any Customer Data or other content that is posted on, provided or uploaded to, or transmitted through the Platform or the Services at any time and for any reason in Uberflip’s sole discretion, and Uberflip will not be liable or responsible for exercising this right. For greater clarity, Customer acknowledges and agrees that Uberflip does not guarantee that any Customer Data or other content that is posted on, provided or uploaded to, or transmitted through the Platform or the Services will be available or displayed. Uberflip will use commercially reasonable efforts to notify Customer of the reasons for such limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Uberflip will promptly restore Customer’s access to the Offering as soon as the event giving rise to the limitation or suspension has been resolved, as determined in Uberflip’s sole discretion. Nothing contained in this Agreement will be construed so as to limit Uberflip’s ability to take action or invoke remedies, or act as a waiver of Uberflip’s rights in any way with respect to any of the foregoing activities. Uberflip will not be responsible for any loss or damages incurred by Customer as a result of any limitation, termination or suspension of access to or use of the Platform or the Services under this Section.
6. Customer Responsibilities and Restrictions.
(a) Customer ID. Upon Customer’s request, but subject to any applicable limitations associated with Customer’s subscription, Uberflip will issue user identification and password (“User ID”) to Customer for each individual Customer wishes to have access to and use of the Offering (each, a “User”). Customer may only identify its partners, shareholders, employees and contractors who, in each case, are bound by confidentiality restrictions at least as restrictive as this Agreement as Users. Users may only access and use the Platform and the Services through a User ID issued to Customer. Customer will not allow Users to share their User ID with any other person. Customer is responsible for any and all activity occurring under the User IDs associated with Users. Customer is responsible for all use of the Offering by Users and for maintaining the confidentiality of their User ID and will promptly notify Uberflip of any actual or suspected unauthorized use of the Offering. Uberflip reserves the right to replace any User ID if it determines it may have been used for an unauthorized purpose.
(b) Customer Responsibilities and Restrictions. Customer agrees that Customer is responsible for the compliance by the Users with this Agreement and for the Users’ use of the Offering, as well as for ensuring that the Users maintain the confidentiality of their User IDs. Customer agrees that Customer is responsible for all charges incurred by the Users in connection with access to or use of the Offering and generally for any activity occurring through a User ID. Without limiting the generality of any of the foregoing, Customer agrees that Customer will not, and will not permit any person to:
(i) use the Offering other than as permitted by this Agreement;
(ii) use the Offering to send, store, publish, post, upload or otherwise transmit any Customer Data in violation of any warranty, representation or obligation of Customer under this Agreement;
(iii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Offering (in whole or in part) available to any third party, other than to the Users, or as otherwise expressly contemplated in accordance with this Agreement;
(iv) use the Offering to upload, collect, transmit, store, use or process, or ask Uberflip to obtain from third parties, any Customer Data: (A) that Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (B) for which Customer does not have the authority, consent or permission from the individual(s) to whom the Personal Information relates in accordance with applicable privacy legislation; (C) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights of any third party (including any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (D) that is tortious, defamatory, obscene, or offensive; or (E) that violates, or encourages any conduct that would violate, any applicable law or regulation (including applicable privacy and anti-spam legislation) or would give rise to civil or criminal liability.
(v) use the Offering to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;
(vi) continue to use the Offering in a manner that interferes with or disrupts the integrity or performance of the Offering following a notice from Uberflip of such use;
(vii) attempt to gain unauthorized access to the Offering or its related systems or networks;
(viii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Offering;
(ix) use any data mining, robots or similar data gathering or extraction methods (including electronic address harvesting);
(x) access the Offering for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Offering; or
(xi) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Offering or any part thereof or otherwise attempt to discover any source code or modify the Offering, except as expressly provided for in this Agreement.
(c) Customer Responsibility for Customer Data. Customer has sole responsibility for providing all notices, making all disclosures and otherwise obtaining all necessary consent and authority required by and in accordance with applicable laws regarding Customer Data (including any Personal Information). Uberflip will use the Customer Data it is provided by Customer or third parties in performing the Services “as is”, and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Customer Data.
(d) Removal of Customer Data on Request by Customer. Customer may control the Customer Data stored by the Services, including (subject to Section 10(b)) by deleting or requiring Uberflip to delete all or part of the Customer Data (including Personal Information) at any time.
This Agreement will commence on the Effective Date and continue in effect until terminated in accordance with its terms, or as otherwise set out in the Order Terms.
8. Customer Support.
Uberflip will provide the following support to Customer:
(a) Web and Email Support. Customer will have access to Uberflip’s technical support part of the Website and may use the available interfaces, including any customer support email addresses posted thereon, to submit service requests.
(b) Incident Management. Uberflip will use commercially reasonable efforts to correct any reproducible failure of the Offering to substantially conform to its expected operation; provided that Uberflip will not have an obligation to provide a correction for all such nonconformities.
9. Fees and Payment.
(a) Fees. Customer will pay to Uberflip the Fees in the manner, amounts and frequencies indicated on the Website, in the Order Terms (if applicable) or otherwise communicated by Uberflip to Customer from time to time (including through the Website).
(b) Payment. Unless otherwise indicated on the Website or, if applicable, the Order Terms: (i) Fees are payable in advance on or after the first day of the applicable billing period; and (ii) if required by Uberflip, Customer will provide to Uberflip (and keep current at all times during the Term) the details (including number, date of expiry and CVC) of a valid credit card that is acceptable to Uberflip in its sole discretion (the “Credit Card”). Customer hereby agrees and authorizes Uberflip to charge the Credit Card for any Fees that become due and payable hereunder. Any Fees in respect of non-recurring or one-time charges incurred during a billing period will be automatically charged to the Credit Card on or after the first day of the next billing period. One time fees (including any fees for add ons) are charged at the time in which the Applicable Agreement is approved. In the event the Billing Start Date set out in the Order Terms is a date that is not the first day of the calendar month, Uberflip may pro-rate the applicable Fees based on the number of days in the first Billing Period of the Term and thereafter adjust the payments to recur on the first day of the calendar month for each of the remaining billing periods during the Term. If the Term ends on any day other than the date that is not the last day of the calendar month, Uberflip may pro-rate the applicable Fees based on the number of days in the last billing period of the Term. If applicable, any Fees paid in advance will be applied against monthly invoices on the first day of each calendar month of the Term.
(c) Invoices. From time to time, Uberflip may prepare and send to Customer, at the then-current contact information on file with Uberflip, invoices for any Fees and other amounts that have become due and payable under this Agreement. Unless otherwise expressly stipulated in an invoice, Customer agrees to pay all invoiced amounts immediately upon receipt.
(d) No Set-Off and Late Payment Charge. Customer may not withhold or “set-off” any amounts due under this Agreement. Unless otherwise indicated on the Website, all Fees are non-refundable and Uberflip will provide no full or partial credits or refunds, including in respect of Services that are paid for but not used by Customer. Uberflip reserves the right to suspend Customer’s access to the Offering until all due amounts are paid in full. Any late payment will be increased by the costs of collection (including reasonable legal fees), 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) per month or fraction thereof until fully paid.
(e) Certain Taxes. Fees and charges quoted in this Agreement do not include, and Customer will pay, indemnify and hold Uberflip harmless, from all sales, use, gross receipts, value-added, GST/HST, personal property or other taxes, and all applicable 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 Uberflip.
10. Confidential & Proprietary Information.
(a) Definitions. For purposes of this section, a Party receiving Confidential & Proprietary Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser“, and “Confidential & Proprietary Information” includes all information disclosed by Discloser to Recipient during the Term of this Agreement and marked as “confidential” or “proprietary” or which a reasonable person would understand to be confidential or proprietary; provided that: (a) the terms and conditions of this Agreement, all Derivative Data and all parts of the Offering, whether marked as “confidential” or “proprietary” or not, will be considered to be Uberflip Confidential & Proprietary Information; and (b) all Customer Data (but excluding any Derivative Data), whether marked as “confidential” or “proprietary” or not, will be considered Customer’s Confidential & Proprietary Information; and further provided that Discloser’s Confidential & Proprietary Information (other than Personal Information) does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient will use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event will less than due diligence and reasonable care be exercised. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 10, if it affords the other party’s Confidential & Proprietary Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care). Upon the earlier of: (A) Discloser’s written request; and (B) the termination or expiration of this Agreement, regardless of whether a dispute may exist, Recipient will return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. Uberflip may retain a copy of such Confidential & Proprietary Information for the sole purpose of and to the extent necessary for it to comply with applicable and legal, regulatory, or reasonable internal back-up or archival policies and requirements. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.
(c) Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief will be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
11. Customer Warranty; Disclaimer; Indemnity.
(b) Disclaimer. THE OFFERING AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY UBERFLIP TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. UBERFLIP HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. UBERFLIP DOES NOT WARRANT THAT THE OFFERING WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, UBERFLIP EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE OFFERING WILL BE ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
(c) Indemnity. Customer agrees to indemnify and hold harmless Uberflip, its employees, officers, directors and affiliates against any and all liability (including losses, damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) relating to: (i) Customer Data, (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (iii) Customer’s use of the Offering, including in combination with any third party software, application or service.
12. 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:
(a) Amount. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF UBERFLIP IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY UBERFLIP UNDER THIS AGREEMENT DURING THE PRECEDING 12 MONTHS. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL UBERFLIP’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) Type. IN NO EVENT WILL UBERFLIP BE LIABLE TO CUSTOMER FOR ANY: (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL; (III) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY; OR (IV) 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, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT WILL UBERFLIP BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated by the Parties and immediately after being received by the other party’s server. Notices must be in writing and sent: (a) if to Uberflip, to the address set out in the introductory paragraph of this Agreement; and (b) if to Customer, to the current postal or email address that Uberflip has on file with respect to Customer. Uberflip 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 its contact information on file with Uberflip current at all times during the Term.
(a) On Notice. Customer may terminate this Agreement at any time by giving prior notice to Uberflip or by cancelling its subscription account through any available interfaces on the Platform. Uberflip may terminate this Agreement at any time by giving prior notice to Customer.
(b) Generally. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party: (i) commits a material breach of this Agreement, and either: (A) fails within seven days after receipt of notice of such breach to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion; or (B) such material breach is incapable of being cured; or (B) becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed, or a petition in bankruptcy is filed with respect to the Party and is not dismissed within 30 days.
(c) Survival. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both Parties (except for Customer’s payment of all Fees and other amounts then owing in accordance herewith), including all licenses granted hereunder, will immediately terminate except as provided below; (b) within 30 days after the effective date of termination, each Party will comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth Section 10 (Confidential & Proprietary Information). The following Sections will survive expiration or termination of this Agreement for any reason: Section 4 (Reservation of Rights), Section 6 (Customer Responsibilities and Restrictions), Section 10 (Confidential & Proprietary Information), Section 11 (Customer Warranty; Disclaimer; Indemnity), Section 12 (Limitation of Liabilities), Section 14(c) (Survival), and Section 15 (General Provisions).
15. General Provisions.
(a) Assignment. Customer may not assign this Agreement to any third party without Uberflip’s prior written consent, except that Customer may assign its rights (but not obligations) hereunder to an affiliate of Customer. Uberflip may assign this Agreement, in whole or in part, to any third party without Customer’s consent. Any assignment in violation of this Section will be void. The terms of this Agreement will be binding upon and inure to the benefit of the Parties’ successors and permitted assignees.
(b) Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties hereby irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting in Toronto, Ontario. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
(c) Right to List as a Customer. Customer agrees that Uberflip may utilize Customer’s name in listings of current customers. Use of Customer’s name in any other marketing materials or press announcements will be submitted to Customer in advance for approval, provided that such approval will not be unreasonably withheld.
(d) Compliance with Export Regulations. Customer has or will obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; will indemnify and hold Uberflip harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the Offering. Customer will not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.
(e) Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “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”, when used in respect of Uberflip herein mean the right of Uberflip to withhold such consent or exercise such discretion (as applicable) arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer. Unless otherwise indicated, all dollar amounts are in United States Dollars.
(f) Force Majeure. Neither Party will be liable for delays caused by events beyond its reasonable control, except non-payment of amounts due hereunder will not be excused by this provision.
(g) Severable. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable will be automatically conformed to the minimum requirements of law and all other provisions will remain in full force and effect.
(h) No Waiver. Waiver of any provision hereof in one instance will not preclude enforcement thereof on future occasions. Any waiver by one Party of any default by the other Party will not affect or impair any rights of the first Party arising from any subsequent default by that other Party.
(i) Independent Contractors. Customer’s relationship to Uberflip is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Uberflip.
(j) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
(k) Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver or termination of this Agreement and, unless otherwise specified, 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, UBERFLIP MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT“), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY UBERFLIP, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE NOTICE THEREOF IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS EARLIER).
(l) 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.