Terms & Conditions
1. Definitions. As used in this Agreement
1.1 “Agreement” means these Terms and Conditions, the Order Form, and the Privacy Statement incorporated herein by reference.
1.2 “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes the Customer Data, information derived from or concerning the Service, the System or the Documentation and the terms of this Agreement.
1.3 “Custom Services” means any professional services to be provided by EasyMarkit described in an Order Form.
1.4 “Customer” means the Customer identified on the Order Form.
1.5 “Customer Data” means any data, information or information contained in any database, template or other similar document submitted by Customer through the Service or provided by Customer to EasyMarkit as part of the Service.
1.6 “Documentation” means the designated user manuals, handbooks, online materials, specifications or forms furnished by EasyMarkit that describe the features, functionality or operation of the System.
1.7 “EasyMarkit” means Mark It Developments, Inc.
1.8 “Fees” is defined in Section 4.
1.9 “Installation and Training Services” is defined in Section 2.2.
1.10 “Local Software” is defined in Section 2.1.
1.11 “Order Form” means, collectively, the initial Services and Subscription Order Form and any other order documents representing a subscription to the Service and, if applicable, any Custom Services (and any subsequent modifications to the subscription agreed to between the parties in writing from time to time) that, upon execution, are incorporated in and made a part of this Agreement.
1.12 “Privacy Statement” means, EasyMarkit’s Privacy Statement as amended from time to time, the most current version of which shall always be available at https://easymarkit.com/privacy.
1.13 “Service” means the on-line service delivered by EasyMarkit to Customer using the System, through the Local Software or other mobile or web applications, as made available by EasyMarkit from time-to-time as specified in the Order Form.
1.14 “System” means the technology, including hardware and software, used by EasyMarkit to deliver the Service to Customer in accordance with this Agreement.
1.15 “UserID” is defined in Section 3.1.
1.16 “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.
2. The Service
2.2 Installation and Training. Upon execution of an Order Form which provides for installation and training services as part of the Service, an implementation and critical path roadmap will be mutually agreed between Customer and EasyMarkit, which period will be not more than sixty (60) days from the Effective Date of the Order Form. This roadmap will set out the process and timeline during which EasyMarkit will remotely assist with the installation of any Local Software and train Customer and its Users for use of the Service (the “Installation and Training Services”). The Installation and Training Services shall include an aggregate of four (4) hours or remote online training to Customer and its designated Users, including hands-on training exercises, which time may be allocated as desired by Customer. The obligations of EasyMarkit in this Section 2.2 are subject to Customer ensuring that, prior to commencement of the Installation and Training Services, all hardware and networking capabilities required for use of the Service or specified by EasyMarkit are installed and in working order at the location Customer intends to access the Service and that all necessary personnel of Customer are available during EasyMarkit’s regular business hours. For greater certainty, the Installation and Training Services do not include on-premises attendance by EasyMarkit or its staff. Customer may order additional training services as Custom Services pursuant to an Order Form at an additional charge.
2.3 Custom Services. Customer may from time to time order Custom Services under this Agreement by way of a mutual written agreement between the parties setting out the Fees, payment terms, description of Custom Services, performance standards and timeline for delivery.
2.4 Support. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, EasyMarkit shall use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that EasyMarkit will not have an obligation to provide a correction for all such nonconformities.
2.5 Privacy Statement. Subject to the terms of this Agreement, EasyMarkit will maintain the privacy of Customer Data and the security of the Service as described in and in accordance with the Privacy Statement.
2.6 Internet Security Disclaimer. Customer acknowledges and agrees that EasyMarkit exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of EasyMarkit’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.
2.7 Limitation, Suspension or Termination of Access. In addition to other rights and remedies of EasyMarkit under this Agreement, EasyMarkit may suspend, terminate or limit (in EasyMarkit’s sole discretion) Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect EasyMarkit from harm to its reputation or business. EasyMarkit will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, EasyMarkit will restore Customer’s access to the Service when EasyMarkit determines the event has been resolved. Nothing in this Agreement will limit EasyMarkit’s right to take any action or invoke remedies, or will act as a waiver of EasyMarkit’s rights in any way with respect to any of the foregoing activities. EasyMarkit will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service under this Section 2.7.
2.8 Third Party Software. The Service receives data from third-party software systems, which will be designated by Customer in the process of setting up the Service. If Customer elects to change, upgrade or materially alter the third party software system from which EasyMarkit receives data, EasyMarkit does not guarantee that all Customer Data or Service functionality will be preserved. Customer is responsible for communicating any changes in data structure, management system, or hardware upgrades that may impact EasyMarkit’s ability to receive and process Customer Data.
3. Customer’s Use of the Service
3.1 Access and Security Guidelines. Subject to any limitations on the number of Users set forth in the Order Form, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to EasyMarkit for each User. Users may only access and use the Service with the specific UserID. Customer is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Customer is responsible for any and all activity occurring under the UserIDs associated with Users. Customer will promptly notify EasyMarkit of any actual or suspected unauthorized use of the Service. EasyMarkit may require that a UserID be replaced at any time.
3.2 Customer Responsibilities and Restrictions. Customer will, at all times, comply with all applicable local, state, federal and foreign laws in using the Service. Without limiting the generality of Section 3.1, Customer agrees that Customer will not, and will not permit any person to:
(2.a) use the Service other than as permitted by this Agreement;
(2.b) use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contractual rights or any other legal right;
(2.c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a servicer bureau;
(2.d) copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service;
(2.e) use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service;
(2.f) access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service; or
(2.g) interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.
3.3 Customer Data. Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. EasyMarkit may take remedial action if Customer Data violates this Section 3.3, however, EasyMarkit is under no obligation to review Customer Data for accuracy or potential liability. Except as provided in this Agreement or as required by law, EasyMarkit shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or for the improper or erroneous upload or extraction of any Customer Data. EasyMarkit reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, non-payment of Fees.
3.4 Email Compliance. Customer agrees to comply with all elements of CAN-SPAM, CASL, and other safe sender email practices in using the Service. This includes but is not limited to including unsubscribe links, full contact information in all correspondence, and not releasing private and/or confidential information. Customer may only use email services for those customers with which Customer has an existing business relationship and which have indicated that they accept correspondence from Customer. Customer may not attempt to spoof sender domains, send spam or other offending email practices. Because of carrier technologies, EasyMarkit makes no expressed or implied warranty of individual message receipt. EasyMarkit is not liable for any issues associated with the content that Customer provides to its customers.
3.5 Text Message Compliance. EasyMarkit has worked to achieve carrier certification for text message delivery. To maintain this certification, Customer agrees to only use text message services for those of its customers with which Customer has an existing business relationship and which have indicated that they accept correspondence from Customer. For reliable delivery, Customer agrees to adhere to message limitations including length and delivery. Customer may not attempt to spoof sender domains, send spam or other offending text message practices. Because of carrier technologies, EasyMarkit makes no expressed or implied warranty of individual message receipt. Standard text message rates apply for all text message services. EasyMarkit is not liable for any issues associated with the content that Customer provides to its customers.
4.1 Fees, Payment, and Suspension. As consideration for the subscription to the Service, the Installation and Training Services, and any Custom Services provided by EasyMarkit under this Agreement, Customer will pay EasyMarkit the fees (“Fees”) set forth in and in accordance with the Order Form. All Fees will be billed in advance on an annual basis and are due within thirty (30) days of receipt of invoice, unless otherwise agreed to in the Order Form. Overdue amounts shall accrue interest at the rate of 12% per annum, or at the highest legal interest rate, if less. Customer shall reimburse EasyMarkit for all expenses (including reasonable legal fees) incurred by EasyMarkit to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on EasyMarkit’s net income. EasyMarkit reserves the right (in addition to any other rights or remedies EasyMarkit may have) to discontinue the Service and suspend all UserIDs and Customer’s access to the Service if any Fees set forth in the Order Form are more than thirty (30) days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
4.2 Credit Card Authorization. By submitting credit/debit card (“Bank Card”) data to EasyMarkit, Customer authorizes EasyMarkit in its complete discretion to submit a financial transaction(s) for the Fees to Customer’s issuing bank for settlement. Customer agrees that once EasyMarkit has approved or declined Customer’s transaction, EasyMarkit has fully performed under the terms of this Agreement. Customer agrees to contact EasyMarkit in the event that Customer desires to cancel any recurring charge, prior to the next billing cycle. Should Customer fail to contact EasyMarkit, Customer agrees to indemnify and hold EasyMarkit harmless from any losses or damages that Customer suffers as a result of a recurring charge. In the event the Customer identifies an error on Customer’s account, including an incorrect amount or unauthorized transaction, Customer agrees to contact EasyMarkit prior to the next billing cycle. Upon proper notification, EasyMarkit, in its sole discretion may issue a credit to Customer’s Bank Card.
5. Confidential Information
5.1 Obligation. Subject to Sections 6.2 and 6.3, each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
5.2 Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
6.1 System and Technology. Customer acknowledges that EasyMarkit retains all right, title and interest in and to the System and all software, materials, formats, interfaces, information, data, content and EasyMarkit proprietary information and technology used by EasyMarkit or provided to Customer in connection with the Service (the “EasyMarkit Technology”), and that the EasyMarkit Technology is protected by intellectual property rights owned by or licensed to EasyMarkit. Other than as expressly set forth in this Agreement, no license or other rights in the EasyMarkit Technology are granted to the Customer, and all such rights are hereby expressly reserved by EasyMarkit.
6.2 Feedback. Customer acknowledges that any ideas, suggestions, concepts, processes, techniques, enhancement requests, recommendations, test results, data information and other output or feedback, provided or generated by Customer or any User during the term of this Agreement, relating to the use or functionality of the Service or EasyMarkit’s business, and any and all metadata, anonymized data, raw data and other information reflecting the access or use of the Service by Customer (the “Feedback”), will become EasyMarkit’s exclusive property without any compensation or other consideration payable to Customer or User by EasyMarkit, and Customer hereby assign all rights on a worldwide basis in perpetuity to EasyMarkit in any Feedback and, as applicable, waives any moral rights therein.
6.3 Use of Anonymized Content. Customer hereby grants EasyMarkit a perpetual, exclusive, irrevocable, worldwide, royalty-free, sublicensable and transferable license to use, host, reproduce, distribute, license, display, perform, modify and create derivative works of any and all Customer Data in aggregated anonymized form. EasyMarkit will periodically, at EasyMarkit’s discretion, provide Customer with reports reflecting the access and/or use of the Service and/or Customer Data. To the extent required, Customer agrees to obtain such rights and permissions from Users and Customer’s patients as may be required to grant EasyMarkit the necessary rights to such anonymized data.
6.4 Customer Data. Subject to Section 6.3, Customer retains all right, title and interest in and to the Customer Data. EasyMarkit will only use Customer Data to provide the Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Customer grants to EasyMarkit all necessary licenses in and to such Customer Data solely as necessary for EasyMarkit to provide the Service to Customer. Subject to Section 6.3, EasyMarkit will not knowingly use or access any Customer Data unless authorized to do so by Customer and, in such circumstances, EasyMarkit will access and use such Customer Data only as required to perform requested services on behalf of Customer.
7. Term and Termination
7.1 Term. The initial term of this Agreement will commence on the Effective Date and continue for one (1) year, unless otherwise agreed to in the Order Form. Thereafter, this Agreement will renew for additional one (1) year terms unless either party gives the other party prior written notice of non-renewal within thirty (30) days prior to the expiration of the then-current term. The terms applicable to any renewal shall be set out in each Order Form, or otherwise determined by EasyMarkit from time to time, provided that any increase in Fees or amendment to other business terms not set out in an Order Form shall be consistent with EasyMarkit’s then current practices for its customers subscribing for substantially similar services.
7.2 Early Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and does not cure such breach (if curable) within fifteen (15) days after written notice of such breach. Customer may terminate this Agreement within fifteen (15) days of receipt of notice from EasyMarkit of an amendment to this Agreement pursuant to Section 11.7. Upon the termination of this Agreement for any reason, (a) any amounts owed to EasyMarkit under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information) of the other party in its possession or control. EasyMarkit agrees that upon any early termination of this Agreement, EasyMarkit will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by EasyMarkit) for a reasonable time period after termination. Thereafter, EasyMarkit will remove all Customer Data from the System and all Customer access to or use of the System and Service will be immediately suspended. EasyMarkit may terminate a free or trial account at any time for any reason prior to the end of the trial period.
7.3 Surviving Provisions. The rights and duties of the parties under Sections 4, 5, 6, 8, 9, 10, 11.3, 11.4, 11.5 and 11.7 and such other provisions of this Agreement which by implication from its nature is intended to survive the termination or expiration of this Agreement, shall survive the termination or expiration of this Agreement.
8. Warranty; Disclaimer
THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY EASYMARKIT TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. EASYMARKIT HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. EASYMARKIT DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, EASYMARKIT EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. EASYMARKIT MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND ABOUT THE ACCURACY OR COMPLETENESS OF ANY SITES, APPLICATIONS, PAGES OR SERVICES LINKED TO OR THROUGH THE SERVICE. EASYMARKIT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR, ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICE OR WEBSITE FEATURED IN ANY USER SUBMISSION, BANNER, SPONSOR MESSAGE OR OTHER ADVERTISING. EASYMARKIT SHALL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN THE CUSTOMER AND ANY OTHER USER OF THE SERVICE OR ANY THIRD-PARTY PROVIDERS OF ANY PRODUCT OR SERVICE.
9.1 By EasyMarkit. If any action is instituted by a third party against Customer based upon a claim that the Service or System, as delivered, infringes any third party intellectual property rights in the United States or Canada, EasyMarkit shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. EasyMarkit may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using the Service, (b) replace or modify the System or Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. EasyMarkit shall have no liability to Customer for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Service or System (i) after it has been modified by Customer or a third party without EasyMarkit’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by EasyMarkit. This Section 9 sets forth the entire obligation of EasyMarkit and the exclusive remedy of Customer against EasyMarkit or any of its suppliers for any alleged infringement or adjudicated infringement of any patent, copyright or other intellectual property right by the Service or System.
9.2 Exceptions. EasyMarkit will have no liability to Customer pursuant to Section 9.1, or otherwise under this Agreement, for any claim under Section 9.1, if: (a) Customer or any User is in breach of any term or condition of this Agreement; or (b) such claim relates in any way to Customer’s or any User’s use of the Service: (i) after it has been modified by Customer or a third party without EasyMarkit’s prior written consent; (ii) in combination with any other service, equipment, software or process not provided by EasyMarkit; or (iii) after EasyMarkit has notified Customer to cease use of the Service, due to such a claim.
9.3 By Customer. If any action is instituted by a third party against EasyMarkit arising out of or relating to: (a) Customer’s use of the System or Service (including claims by any customer or business partner of Customer); (b) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (c) an allegation that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property, privacy, or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of EasyMarkit and shall pay all damages attributable to such claim which are finally awarded against EasyMarkit or paid in settlement of such claim. Customer shall have no obligation under this Section 9.3 for any claim or action that is described in Section 9.1 or arises out of a breach of this Agreement by EasyMarkit.
9.4 Conditions. Any party that is seeking to be indemnified under the provision of this Section 9 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
10. Limitation of Liability
The following provisions have been negotiated by each party , are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
10.1 Amount. IN NO EVENT SHALL EASYMARKIT AND ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUE, INCOME, PROFIT, REPUTATION, GOODWILL OR CUSTOMERS WHATSOEVER RESULTING FROM USE OF OR ACCESS TO THE SERVICE OR THE SYSTEM, INCLUDING WITHOUT LIMITATION RESULTING FROM ANY: (I) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE SERVICE; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM ACCESS TO OR USE OF THE SERVICE; (III) UNAUTHORIZED ACCESS TO, OR USE OF, THE SERVICE, EASYMARKIT’S SERVERS, PERSONAL INFORMATION OR OTHER INFORMATION STORED THEREIN OR THEREON; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) TERMINATION OF ACCESS TO THE SERVICE OR REMOVAL OF OR REFUSAL TO DISPLAY CONTENT; (VI) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD-PARTY OR OTHERWISE; OR (VII) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND RELATING TO THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE AFFECTED PARTIES ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EASYMARKIT’S SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
10.2 Type. IN THE EVENT THAT ANY OTHER PROVISION SHALL FAIL OF ITS ESSENTIAL PURPOSE, THE TOTAL AGGREGATE LIABILITY OF EASYMARKIT FOR ANY AND ALL CLAIMS RELATED TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES SUFFERED BY THE CUSTOMER, NOT TO EXCEED THE PORTION OF THE FEES ACTUALLY RECEIVED BY EASYMARKIT FROM THE CUSTOMER IN RESPECT OF THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM PURSUANT TO THE ORDER FORM IN CONNECTION WITH WHICH THE CLAIM AROSE, EVEN IF THE PAYMENT RECEIVED BY EASYMARKIT DURING SUCH THREE (3) MONTH PERIOD IS FOR AN ANNUAL SUBSCRIPTION. ALL CLAIMS THAT THE CUSTOMER MAY HAVE AGAINST EASYMARKIT WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. ANY ACTION COMMENCED AGAINST EASYMARKIT FOR ANY AND ALL CLAIMS RELATED TO THIS AGREEMENT, SHALL BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER SUCH CAUSE OF ACTION SHALL HAVE FIRST ARISEN. IN NO EVENT SHALL EASYMARKIT BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
10.3 Proceedings. CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE RELATED TO THIS AGREEMENT: (I) CUSTOMER HEREBY GIVES UP CUSTOMER’S RIGHT TO HAVE A TRIAL BY JURY; AND (II) CUSTOMER HEREBY GIVES UP THE CUSTOMER’S RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE RELATED TO THIS AGREEMENT.
10.4 Extent of Limitations. ALL FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
11. General Provisions
11.1 Publicity. EasyMarkit and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. All public announcements by either party concerning this Agreement are subject to prior written approval by Customer and EasyMarkit, which approval shall not be unreasonably withheld. The parties will use reasonable efforts to review and approve public announcements within three (3) days of submittal. Customer agrees to allow EasyMarkit to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of EasyMarkit and a user of the Service.
11.2 Assignment. Customer may not assign this Agreement to a third party without EasyMarkit’s prior written consent not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer. EasyMarkit may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this Section 11.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
11.3 Arbitration. Except for any dispute related to the intellectual property rights of a party, any dispute or claim arising out of or relating to this Agreement shall be referred to and finally resolved by binding arbitration before a single arbitrator under the International Commercial Arbitration Rules of Procedure of, and administered by, the British Columbia International Commercial Arbitration Centre (“BCICAC”). The appointing authority shall be the BCICAC. The place of arbitration shall be Vancouver, British Columbia, Canada and the language of the arbitration shall be English.
11.4 Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
11.5 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address set forth on the Order Form for Customer and for EasyMarkit at email@example.com or #201, 124 East Pender Street, Vancouver, BC V6A 1T3 (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail, (c) sent via fax or email, or (d) sent by recognized air courier service.
11.6 Entire Agreement. This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
11.7 Amendments. EasyMarkit reserves the right to modify this Agreement or its policies relating to the Service at any time, effective upon posting an updated version of this Agreement on its website and giving notice to Customer. Unless Customer terminates this Agreement pursuant to Section 7.2, continued use of the Service after notice is given to Customer of any such changes shall constitute Customer’s agreement to such changes.
11.8 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.9 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.