Liftspec Software as a Service (SaaS)
TERMS AND CONDITIONS
This Mass Equipment Solutions LiftSpec Software as a Service (SaaS) Terms and Conditions (these “Terms” and/or this “Agreement”) constitute a legally binding agreement between you and Mass Equipment Solutions Inc. (“MASS EQS”, “we”, “us” or “our”) governing your use of the LiftSpec web-based and iOS and Android mobile applications (collectively, the “Software”). By accessing or using the Software and/or by submitting an Order Form (defined below) for Services (defined below) , you agree to be bound by these Terms. If you submit an Order Form, and/or are using the Software on behalf of, or in the employ of, an organization (corporation, trust, partnership, etc.), you are agreeing to be bound by the terms of this Agreement for that organization and representing and warranting that you have the authority to bind that organization to these Terms. In such a case, “you”, “your”, “User”, and “Client”) will also refer to that organization and yourself individually. For greater clarity, both you as an individual and your organization are legally bound by the terms of this Agreement which form an agreement between you and MASS EQS.
By submitting an Order Form or an applicable Schedule for Services, and/or accessing or using the Software, you expressly acknowledge that you understand these Terms and accept all of its terms and conditions. If you do not agree to be bound by these Terms, you shall not be permitted to download, use or access the Software, and we will not provide you with any of the Services you may have requested and submitted to us on the Order Form.
1. DEFINITIONS AND INTERPRETATION
(a) “Administrator” means an individual designated by, in the employ, or acting on behalf of the Client who has the authority to administer the Software subscription, and to activate additional Users and/or Administrators to the Software Subscription.
(b) “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions, and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over these Terms or the supply or use of the Services.
(c) “Business Day” means any day except Saturday, Sunday, or any day on which banks are generally not open for business in the City of Toronto, Ontario.
(d) “CASL” means any applicable federal, provincial, and local laws, regulations, and rules governing sending of commercial electronic messages.
“Client” shall mean the organization that has executed and submitted an Order Form (defined below) or has otherwise initiated the request for Services and the use of the Software and is assumed to have the sole authority to provide instructions to MASS EQS concerning the Services and to administer the Software subscription. Client also refers to you in these Terms, where you are acting on behalf of, or in the employ of the Client as its representative authorized to bind the Client to these Terms, the Order Form and any other Schedule (defined below).
(e) “Content” has the meaning ascribed to it in Article 6.
(f) “Data” means any data created, or generated by the Client and any of its authorized Users in any form or format, and which may be supplied to MASS EQS to be inputted onto the Software for use by the Client and its authorized Users, in accordance with the terms of MASS EQS’s applicable data retention policy.
(g) “Client Materials” means any materials forming part of the Client’s Intellectual Property, including the Content (defined below), Data and any other materials created, generated, or produced by the Client, and which are provided to MASS EQS for the performance and execution by MASS EQS of the Services as contemplated in these Terms.
(h) “Deliverables” means the deliverables to be provided to you/Client by MASS EQS as indicated in the Order Form or any other applicable Schedule for the Services (and upon Payment for such Services), in accordance with these Terms.
(i) “Fees” means the fees and costs to be paid by you/Client pursuant to Schedule A – Description of Services and Fees, and/or as may be set out in the Order Form.
(j) “Initial Administrator” means the Administrator who (a) initiates the use of the Services, (b) submits the Order Form and (b) authorizes the use of the Services to other Administrators and Users.
(k) “Inspection Forms” means the custom inspection forms and PDF Reports developed by MASS EQS, using the Client Materials provided and/or supplied by the Client to MASS EQS, and digitized and integrated onto the Software for use by the Client, as part of the Services.
(l) “Intellectual Property” means, the right, title and interest in and to all industrial and other intellectual property throughout the world, including without limitation, patents, trademarks, internet domain names, website and uniform resource locators (URLs), works of authorship, expressions, designs, and industrial design registrations, whether or not copyrightable, software and firmware, code application programming interfaces, architecture, files, records, data, documentation, know-how, schematics, methodologies, technology, specifications, documentation, forms, reports, trade secrets, Confidential Information, and any other intellectual property, and all and protections that are associated therewith, equivalent or similar to, or required for the exercise of, any of the foregoing rights, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection under Applicable Law, and in any part of the world.
(m) “Order Form” means the digital order form attached as Schedule C to these Term, and/or on the MASS EQS Website or the App completed by the Initial Administrator on behalf of the Client. The Order Form is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Order Form expressly conflict with these Terms, the conflicting provisions of the Order Form control and shall take precedence over the conflicting provisions of these Terms. MASS EQS may accommodate requests by you/Client to receive a paper (hard copy) or downloadable and portable electronic version (soft-copy) of the Order Form delivered by mail, facsimile, email.
(n) “Personal Information” means any information relating to identifiable individuals, the collection, use, or disclosure of which is regulated by Privacy Laws.
(o) “Privacy Laws” means any applicable federal, provincial, and local laws, regulations, and rules governing the collection, use, and disclosure of information relating to identifiable individuals, including the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection and Electronic Documents Act (Ontario)and any similar legislation enacted by any province or territory of Canada.
(p) “Schedule” means any schedules, exhibits, or form attached to these Terms, or which may be added hereafter by the written parties of the Agreement, and specifically includes the Schedules as provided in Section 1.2(c).
(q) “Services” means the services as described in Schedule A – Description of Services and Fees, and as may be requested by you/Client upon submission of an Order Form and completion of Payment.
(s) “Specifications” means the specifications for the Deliverables, and any requirements in respect of the Services described in a Schedule (if applicable).
(u) “Third Party Software” means any third party software applies, implements, and/or uses in the provision of the Services and/or has integrated onto the Software, and includes the Fast-Field Platform owned and operated by Merge Mobile Inc., and on which MASS EQS builds the Inspection Forms for integration onto the Software.
(a) Words and Gender. In this Agreement, words signifying the singular number include the plural and vice versa, and words signifying gender include all genders. Every use of the word “including” or “includes” in these Terms is to be construed as meaning “including, or without limitation”.
(b) Headings. The insertion of headings and subheadings, and the division of this Agreement into articles, sections, subsections, and other subdivisions, are for convenience and ease of reference only and shall not affect or be utilized in the construction or interpretation of these Terms, and any of its Schedules.
(c) Schedules and Exhibits. The following are the Schedules attached to this Agreement:
|Schedule A –||Description of Services and Fees|
|Schedule B –||Support|
|Exhibit 1 –||Order Form|
2.2 Conflicts. Each Schedule is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of a Schedule expressly conflict with these Terms and conditions, the conflicting provisions of the Schedule control and take precedence over the conflicting provisions of these Terms and conditions, but only for purposes of the Schedule.
2.3 Work Schedule. Unless the Parties expressly agree in writing to firm deadlines or timeframes for the completion of the Services (in which case MASS EQS shall have an obligation to meet such deadlines), any deadlines or timeframes set forth in a Schedule represent an estimated deadline or timeframe proposed by MASS EQS, and which it will endeavor to use reasonable commercial efforts to achieve. You/Client acknowledges that the successful and timely performance of the Services by MASS EQS is dependent on the active participation and collaboration of the Client, its Administrator, and its other employees and representatives, including but not limited to such employees and representatives as may be designated as key/main contact persons (“Main Contacts”), their names, details and contact information which you/Client will provide in an applicable Schedule). You/Client shall, and shall cause the Client’s Main Contacts to act reasonably and co-operate fully with the MASS EQS to provide all Client Materials and Content for the performance and execution of the Services by MASS EQS. MASS EQS shall not be liable for any delay or cost or expense caused as a result of the delay of the Client provided that the MASS EQS has notified the Client of such delay.
2.4 Acceptance. Where a Schedule contemplates the development of a Deliverable, the Client shall have a period to review and accept the completed Deliverables (such period to be specified in the applicable Schedule, or a reasonable period if no period is specified) and MASS EQS shall have a period to remedy any deficiencies identified by you/Client (such period to be as specified in the applicable Schedule, or a reasonable period if no period is specified). You/Client shall provide the MASS EQS prompt notice of any deficiencies identified by the Client. If you/Client does not give written notice of any deficiencies within such period, it shall be deemed to have accepted the Deliverables.
4.1 Term. The term of these Terms (“Term”) shall commence on the date the Order Form or any applicable Schedule is submitted for the use of the Software and/or the Services (as further set out in such Order Form or any applicable Schedule), and continue for the length of time set out therein, as the Initial Term (“Initial Term”). Thereafter, these Terms will automatically renew for successive terms equal to the length of time of the Initial Term (“Renewal Terms”), unless such length of time is otherwise agreed upon by the Parties, and unless terminated in accordance with these Terms.
5. USER ACCOUNTS
5.1 Provisioning and User Accounts. Upon[DE1] submitting an Order Form, and completing payment of the Fees (“Payment”) as indicated and directed on the Order Form, or in an application Schedule through our third party payment provider using an acceptable payment method as therein indicated, MASS EQS will create an initial Administrator User account for the Initial Administrator and will provide such Initial Administrator its credentials to access the Software. The Initial Administrator may add other Administrators and authorize Users pursuant to the terms of the Order Form. The Initial Administrator and other Administrators shall be deemed to have the authority to manage (including adding and removing), Users. Administrators may deactivate any User if the Administrator wishes to terminate access to the Service for any User.
5.2 Registration. Upon logging onto your assigned Initial Administrator, Administrator, or a User account for the first time, Administrators and Users agree to, (a) provide accurate, current, and complete information as may be prompted by any registration forms on the Software (“Registration Data”); (b) maintain the security of your password; (c) maintain and promptly update the Registration Data, and any other information you provide to the Software, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information provided to MASS EQS. The Client shall be responsible for all Content, and activity by its Users on the Software, including the activity, performed on the Software through the User accounts by an agent, representative, employee (including former employees who maintained access to the Services), or any other person acting on behalf of such User. It is the responsibility of the Client to delete User accounts or otherwise remove access to Users who should no longer be active (e.g. a User who is no longer an employee or contractor of the Client), and request any deletion or modification of the Content (which may be subject to additional fees and costs at the discretion of MASS EQS, and as may be outlined in a Schedule or the Order Form).
6.1 Definition. “Content” means all Client Materials, Data, and any other Intellectual Property of the Client, including any text, information, logos, marks, designs, graphics, pictures, sound and video files, other documentation, files, forms, that is solely created, produced, and/or generated by the Client and its Users, and which is subsequently inputted onto and/or integrated on to the Software (including their selection and arrangement) for use by the Client and its Users in accordance with the provision of Services by MASS EQS under these Terms (including an Order Form of applicable Schedule).
6.2 Client’s Obligations to Provide/Supply Content. You/Client are solely responsible for supplying, providing, and delivering Content to MASS EQS, which MASS EQS will use to develop the Client’s custom Inspection Forms. MASS EQS does not and shall not in the future create, generate, produce or supply any Content for or on behalf of the Client for use in the development of any Inspection Forms.
6.3 Responsibility for Content. Any Content that you/Client provide to us (whether in whole or in part) under these Terms is solely and exclusively the Client’s responsibility. We have no responsibility or liability to the Client or any third party for any of the Content, or for any loss or damage, the Content may cause to the Client or any other party. You/Client hereby understand that we act as a Software as a Service (SaaS) provider, and our sole obligation is to provide the Client and its Users with the license to use our Software (i.e. the real estate) on which we will digitize, input and integrate the Content in accordance with the Services we have agreed to provide to the Client under an Order Form or applicable Schedule. Although we have no obligation to do so, we have the absolute discretion to remove, screen or edit without notice any Content posted or stored on the Software, and we may do this at any time and for any reason. You are solely responsible for maintaining copies of and requesting the replacement of Content integrated and/or stored on the Software. Notwithstanding the foregoing, we will provide you with reasonable notice in writing if we decide to remove any such Content.
6.4 Client’s Representations and Warranties (Content). You/Client represent and warrant to MASS EQS that, (a) any such Content delivered to MASS EQS for the development of the Inspection Forms, the PDF Reports, (and the performance and execution of any other Services under the terms of this Agreement), is accurate, complete, error-free, complies with any Applicable Law and industry practices, policies, regulations, guidelines and/or standards; (b) nothing contained in the Content provided to MASS EQS under these Terms, infringes or may infringe upon, violate, or misappropriate any Intellectual Property rights of any third party.
MASS EQS respects the Intellectual Property rights of any party. By submitting Content for the use of the Software, you/Client represent and warrant that doing so does not infringe any third party’s copyrights, trademarks, privacy rights, or other Intellectual Property or legal rights of any kind. MASS does not endorse, support, represent, or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted on the Software (including links to third-party websites) or endorse any opinions expressed on the Software, or such websites or resources.
7.1 Client Representations and Warranties re Use. You/Client represent and warrant that the use of the Services by the Client and the Client’s directors, officers, employees, contractors, representatives, and other agents during the Term, will (a) be consistent with these Terms and any licenses provided; (b) comply with Applicable Law, including, but not limited to Privacy Laws and CASL.
7.2 Client Representations and Authorized Use. You/Client further understand, agree, represent, and warrant to MASS EQS, that:
a) the use of the Software and the Services will require mobile and portable devices and/or Internet access to operate. The Client agrees that it shall be responsible for providing its Users with such mobile and portable devices, and for maintaining its own Internet access with the necessary bandwidth speeds as recommended by MASS EQS and all necessary telecommunications equipment, services, software, and other materials (collectively, “Client Equipment”) necessary for accessing the Software and the Services;
b) you/Client agree to notify the MASS EQS of any changes or maintenance to the Client Equipment, including any internet service MASS EQS (ISP) changes, system configuration changes, or any hardware or software upgrades, which may affect the Services provided hereunder;
c) you/Client agree that Users may be required to connect with a browser configuration specified by MASS EQS;
d) you/Client agree that it will remain responsible for backing up and administering the security of the Data, including the granting of rights of access to the Data;
e) you/Client have the right and authority to enter onto these Terms and to allow the MASS EQS to perform the Services;
f) the Client is solely responsible for providing, updating, uploading, modifying, and maintaining the Data, and/or notifying MASS EQS of any requirements to update any of the Content inputted on the Software;
g) have all valid and required consents, approvals, licenses, qualifications, and regulatory approvals, and is compliant with all Applicable Law in respect to any Content the Client provides to MASS EQS for the integration onto the Software, and any such Content provided to MASS EQS has been approved for use, or meets any standards and/or industry requirement in accordance with Applicable Law, and shall be responsible and liable for the Content, as well as obtaining all such approvals and meeting industry requirements in relation to the Content. MASS EQS is shall in the future not be held liable for any issues arising out of Content and the use of such Content on the Software; and
h) you/Client shall fully comply with Article 6 of these Terms (Content);
i) you/Client at all times with Article 7 (License to Software and License Restrictions) of these Terms; and
j) the Client will use and cause its Users to use the Software, and the Services solely for their intended purpose.
8. LICENSE TO SOFTWARE AND LICENSE RESTRICTIONS
8.1 License to Software. During the Term, MASS EQS hereby grants to the Client and its authorized Users, a revocable, non-exclusive, non-transferable license to use the Software solely to permit the Client and User(s) to use the functionality contained within the Software for legitimate business purposes.
8.2 License Restrictions. Except as set forth in these Terms or any Schedule and to the extent contrary by Applicable Law: the Client and Users may not (i) make or distribute copies of the Software; (ii) alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form; (iii) sell, rent, lease, host or sublicense the Software; (iv) modify the Software, or create derivative works based upon the Software; provided however that the foregoing will not restrict the Client’s rights to exploit any Data which may be incorporated onto, reside in, or form a part of the Software; (v) use the Services in a manner that breaches the rights of any third party, any contract or legal duty or violate any Applicable Law; (vi) copy the Software or any part, feature, function or user interface thereof; (vii) access or use the Software, and/or Services in order to build a competitive product or service; and (viii) not use and not permit its Users to use the Software and/or Services other than for its intended purposes.
9.1 Hosting. MASS EQS will cause the Service to be hosted on a server maintained by a reputable party host (the “Third Party Host”). MASS EQS will be responsible for contracting with the Third Party Host, and for paying all fees and charges of the Third Party Host.
9.3 Provision. The MASS EQS will make the Software available to the Client and Users during the Term. Access to Users will be granted by the MASS EQS in accordance with Schedule A – Description of Services and Fees.
9.4 EULA. When each User first attempts to access the Software, each such User will be prompted to accept the then-current EULA.
9.5 Backups. MASS EQS will create a backup or cause its Third Party Host to create a backup of the Software (including all Data) in accordance with its backup policy. The Data will be retained in accordance with the terms of MASS EQS’s applicable retention policies.
10.1 Fees. In consideration of the licenses described herein and MASS EQS’s performance of the Services, the Client shall pay to MASS EQS the Fees more particularly described in the Order Form. With and to the exclusion of the Maintenance portion of the Services, which is a subscription-based service payable monthly, the development of Inspection Forms or PDF Reports are charged as a lump-sum payable to MassEQS in accordance with these Terms, the Order Form, or other applicable Schedule.
10.2 Payment Method, and User Representations. You/Client may make payment for any portion of the Services using an authorized payment method, and in which case, you will be required to provide your credit card, or banking information, and/or another authorized payment method that we may accept (“Payment Information”). If and when you/Client add Payment Information to your Administrator Account, you represent and warrant that you are authorized to provide and use such designated Payment Information, and you authorize us to provide this Payment Information to our third-party payment processor provider. You acknowledge and agree that our third-party payment processor provider’s terms and conditions will govern your agreement and interactions with them and that we have no liability arising from your use of or access to such third-party payment processor provider that we use to process your Payment Information. You agree to review our third-party payment processor’s terms and policies. MASS EQS reserves the right to switch payment processing vendors at its discretion.
10.3 Collection and Processing of Payment Information for the Services. Payment Information will be stored on your/Client’s Administrator Account and shared with our third-party payment provider, which collects and processes payments on our behalf for the Services. During the Term (and any Renewals thereof), our third-party payment provider will automatically process, debit, and collect Payment for the subscription-based Maintenance portion of the Services every month (“Monthly Maintenance Fee”) and you/Client hereby consent to pre-authorized Payment of the Monthly Maintenance Fee. In the case of Payment for Inspection Forms and/or PDF Reports, such Payment will be processed, debited, and collected in the form of a lump-sum amount in accordance with these Terms, the Order Form, or applicable Schedule. If the Payment Information is declined, delinquent, or expired, and there is an outstanding balance owing to us for your/Client Subscription Package, you/Client will have a grace period of fifteen (15) days to make Payment without incurring any interest (“Grace Period”) when you/Client update your/Client Payment Information your/Client Administrator Account, by sending us your Order Form with the updated Payment Information, or by contacting us at email@example.com, and your/Client Payment Information is successfully processed. However, where the Grace Period has elapsed, and Payment is still outstanding and owing to us, we will charge interest of four percent (4%) on any such outstanding Payment balance. If you do not wish be charged for pre-authorized Payments, you may cancel your Services, by contacting us at firstname.lastname@example.org.[DE3]
10.4 Modification and Increases of the Fees for the Services. We reserve the right to change, modify and/or increase the Fees for our Services. If a Fee is changed or a new Fee is introduced, it will take effect no earlier than thirty (30) days from the date it is posted on the Software, your/Client Administrator Account, or as otherwise communicated to you in writing by us. Non-acceptance of changes to our Fees will be subject to the automatic termination of these Terms, such termination which will not relieve you/Client of your/Client obligation to make and Payments for the Services due and owing in accordance with the Term of these Terms, Order Form, or any applicable Schedule.
10.5 Invoices and Payments. MASS EQS shall invoice you/Client, in advance, for the Services in accordance with the terms of the Order Form. You/Client shall pay such invoices within five (5) calendar days of receipt (or such other time as specified in the Order Form). In addition, MASS EQS shall charge the entire monthly fee for additional Users added within the first fifteen (15) days of the month, (or as otherwise specified in the Order Form). Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to the interest rate indicated in Section 10.3 above.
10.6 Taxes. You/Client shall be responsible for all applicable sales, goods, and services, harmonized sales, value-added, use, excise, other similar taxes, levies, and charges not otherwise included in the Fees imposed by applicable tax authorities on the provision of Services hereunder. You/Client shall pay to MASS EQS such taxes, levies, and charges which the MASS EQS is registered to charge and collect.
11. INTELLECTUAL PROPERTY, PRIVACY
11.1 Ownership of the Software, Copyright, Trademarks, and Intellectual Property. Except for any grant of licenses in these Terms or as otherwise expressly provided in these Terms, the Software is the property of MASS EQS or its licensors and is protected by Canadian and international copyrights laws and any other Applicable Law, and all rights, title, and interest in and to the Software shall be retained by MASS EQS, as well as any other Intellectual Property rights thereto. Nothing in these Terms or any Schedules shall be deemed to convey to the Client or any other party, any ownership right, in or to the Software.
11.3 License from Client to MASS EQS. Client hereby grants to MASS EQS a non-exclusive, royalty-free, non-transferable, limited right to use during the Term, the Data and Content provided to MASS EQS solely to perform Services pursuant to these Terms.
11.4 All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or a Schedule, all intellectual property rights are expressly reserved by the Parties. The Client or MASS EQS, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by MASS EQS or the Client, as applicable, from time to time in order to give effect to the provisions of this Article 11.
11.6 Third-Party and Open Source Software. The Software may contain third-party tools, software, and/or open-source tools and/or software, which may be subject to third-party licenses and require notices and/or additional terms and conditions (“Third Party Licenses”). These Third-Party Licenses are made a part of and incorporated in these Terms. By accepting these Terms, you/Client and its Users are also accepting the Third Party Licenses, if any, set forth therein. To view the Third Party Licenses, please contact email@example.com.
11.7 Third-Party Service Providers and Partners. MASS EQS may hire or engage one or more third-party partners to perform any or all of its obligations under these Terms. Our independent contractors and third-party partners may have access to your personal or business information in providing services to us, or providing you with the Services on our behalf. We may use a variety of third-party service providers, independent contractors, employees, and servers in locations both inside and outside of Canada, which may make your personal or business information the subject of foreign laws and foreign legal proceedings.
12.1 The Software may contain links to third-party websites (“Third Party Sites”) or third-party content (“Third Party Content”), including but not limited to the availability to download the Software on the Google Play and Apple (iOS) App. Your use of links to Third Party Sites or any Third Party Content or services are at your own risk. MASS EQS does not monitor or have any control over and makes no claim or representation regarding, such Third Party Content or Third Party Sites. MASS EQS provides these links only as a convenience, and a link to a Third Party Site or Third Party Content does not imply the endorsement, adoption, or sponsorship by MASS EQS of, or affiliation with, such Third Party Site or Third Party Content. MASS EQS accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature, or reliability of any Third Party Content, Third-Party Sites, or websites linking to the Software. You should review applicable terms and policies, including, without limitation, privacy and data gathering practices, of any Third Party Site, and you should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
13.1 DISCLAIMER. EXCEPT AS SET OUT IN THESE TERMS, INCLUDING THE ORDER FORM OR ANY APPLICABLE SCHEDULE, THE SERVICES AND THE SOFTWARE ARE PROVIDED TO YOU/CLIENT AND THEIR AUTHORIZED USERS ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES FROM MASS EQS. MASS EQS EXPRESSLY DISCLAIMS AND ANY ALL OTHER REPRESENTATIONS, WARRANTIES, AND/OR CONDITIONS OF ANY KIND WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. YOU/CLIENT AND THE CLIENT’S AUTHORIZED USERS HEREBY ACKNOWLEDGE THAT THE SOFTWARE MAY CONTAIN ERRORS, OR MAY NOT OPERATE WITHOUT INTERRUPTION AND/OR BE AVAILABLE AT ALL TIMES. MASS EQS DOES NOT WARRANT OR REPRESENT THE SECURITY, RELIABILITY, AVAILABILITY, PROTECTION FROM ATTACKS, DATA INTEGRITY, DATA AVAILABILITY ACCURACY, COMPLETENESS, OR PROPRIETARY CHARACTER OF THE SOFTWARE AND/OR THE SERVICES (OR ANY PORTION OF THE SOFTWARE AND/OR THE SERVICES). WHILE MASS EQS STRIVES TO OFFER YOU/CLIENT ERROR-FREE AND UNINTERRUPTED USE OF THE SOFTWARE AND SERVICES, WE DO NOT GUARANTEE THE ABSENCE OF ANY INTERRUPTIONS TO THE SOFTWARE AND THE SERVICES, NOR SHALL YOU/CLIENT AND THE CLIENT’S AUTHORIZED USERS HOLD US LIABLE FOR ANY DAMAGES SUCH INTERRUPTIONS MAY CAUSE TO THE CLIENT AND ITS AUTHORIZED USERS. THE USE OF THE SOFTWARE AND/OR SERVICES IS AT YOU/CLIENT OWN RISK, AND IT SHALL ASSUME ANY SUCH RISKS FOR ANY OF ITS AUTHORIZED USERS. ADDITIONALLY, AND AS IT HAS BEEN SET OUT IN THE TERMS AND PROVISIONS OF THESE TERMS, THE CLIENT IS SOLELY RESPONSIBLE (IN WHOLE) FOR THE ACCURACY, COMPLETENESS, RELIABILITY, LEGALITY, FULSOMENESS, FITNESS FOR A PARTICULAR PURPOSE, AND COMPLIANCE WITH APPLICABLE LAW OF THE CONTENT. MASS EQS DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR, IN AND TO THE CONTENT.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER, EXCLUSION, OR LIMITATION OF CERTAIN WARRANTIES, LIABILITIES, AND DAMAGES, SO SOME OF THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS MADE IN THESE TERMS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR WARRANTIES AND LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
13.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT POSSIBLE AND PROVIDED BY LAW, UNDER NO CIRCUMSTANCE WILL MASS EQS BE LIABLE TO THE CLIENT AND ITS AUTHORIZED USERS (INCLUDING YOU) FOR, (I) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, (II) COMPENSATION FOR LOST PROFITS, REVENUE (ACTUAL OR ANTICIPATED), (III) EXEMPLARY, AGGRAVATED OR PUNITIVE DAMAGES howsoever incurred; in each case under any theory of law or equity, for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “CLAIMS”), ARISING OUT or in any way related to these Terms, THE SOFTWARE, AND THe SERVICES, INCLUDING WITHOUT LIMITATION, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF BUSINESS OR ANTICIPATED BUSINESS, LOSS OF PROFIT, LOSS OF USE, LOSS OF GOODWILL, DELETION, LOSS, BREACH OR THEFT OF DATA, DELETION OR LOSS OF CONTENT, BUSINESS INTERRUPTION, REPUTATIONAL HARM, BREACH OF CONTRACT, BREACH OF PRIVACY, MISTAKES, ERRORS, OMISSIONS RESULTING FROM THE RELIANCE ON THE SOFTWARE, THE SERVICES AND ANY APPLICABLE THIRD PARTY SOFTWARE OR OPEN SOURCE SOFTWARE (OR ANY PART THEREOF), DEFECTS, VIRUSES, DELAYS IN OPERATION OF THE SOFTWARE, DELAYS IN THE PERFORMANCE OF AND/OR ANY FAILURE TO PERFORM THE SERVICES, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE SOFTWARE BY ANY USER, OR BY ANY ADVERTENT/INADVERTENT ACT OR OMISSION OF MASS EQS, REGARDLESS OF LEGAL THEORY AND WHETHER OR NOT WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER THOSE DAMAGES WERE FORESEEABLE OR NOT AND/OR CAUSED BY ANY NEGLIGENCE, MISCONDUCT, AND/OR OTHER ACTION AND/OR INACTION BY YOU, THE CLIENT OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, MASS EQS OR ANY OF THE MASS EQS PARTIES).
NOTWITHSTANDING THE FOREGOING, AND Except as otherwise specifically provided HEREIN, THE MAXIMUM liability OF MASS EQS to USERS OR CLIENTS FOR CLAIMS arising out of or resulting from ITS OBLIGATIONS UNDER THESE TERMS shall not exceed an amount equal to the SUBSCRIPTION FEES by A USER in the THREE (3) months prior to the claim being made, OR $100.00, WHICHEVER IS LESS.
13.3 Third-Parties. To the fullest extent permitted by law, without limiting the generality of this Section 13.3, or any other section limiting our liability, you agree that we shall not be responsible for the acts or omissions, including but not limited to, the negligent acts or omissions, of our independent contractors, third-party partners, employees, clients, any other third-party service providers, and/or any Third Party Software and/or Open Source Software.
13.4 Sole and Exclusive Remedy. If you are dissatisfied with the Software and/or the Services, do not agree with any part of these Terms, or have any other dispute or claim with or against us or any other MASS EQS Parties, then your sole and exclusive remedy is to discontinue using our Services and/or accessing the Software.
13.5 Reasonableness of Limitations. You/Client, Administrators, Client’s Users, and MASS EQS agree that the limitations contained in this Article 13 are reasonable in scope and form an integral part of these Terms.
14.1 Indemnity by Client. The Client agree to defend, indemnify and hold MASS EQS, its directors, officers, employees, contractors, subcontractors, agents representatives, affiliates and representatives (“Mass EQS Personnel”) harmless from any Claims of a third party, including any loss, damage or liability, and all reasonable legal costs that MASS EQS may incur, arising out of or occurring in connection with (directly or indirectly), in whole or in part, (a) any negligence of willful misconduct by the Client, and the Client’s its directors, officers, employees, contractors, subcontractors, agents representatives, affiliates, and representatives, including you, and its authorized Users, (“Client’s Personnel”), whether or not such misconduct arises out of the use of the Service by the Client and/or its Personnel; (b) any breach by the Client and its Personnel of the Client’s obligations or the obligations of the Client’s Personnel under these Terms, including and concerning any agreements, obligations, covenants, warranties, or representations contained in these Terms (and/or the Order Form and any applicable Schedule); (c) and failure by the Client and its Personnel to comply with any Applicable Law, whether related to the Content or otherwise; (d) reliance by any User of the Content (including the Inspection Forms and PDF Reports), inputted and/or integrated onto the Software; (d) a violation/breach or claimed violation/breach of MASS EQS’s Intellectual Property; and (d) a violation/breach or claimed violation/ breach of a third party’s Intellectual Property rights arising out of or in relation to the Client’s Materials or any of the Content inputted and/or integrated onto the Software.
14.2 Indemnity by MASS EQS. MASS EQS agrees to defend, indemnify and hold the Client and the Client’s Personnel (including you) harmless from and against all Claims of a third party, including any loss, damage or liability, and all reasonable legal costs that the Client may incur, arising out of or occurring in connection with (directly or indirectly), in whole or in part, (a) any gross negligence or willful misconduct of and by MASS EQS; (b) any breach by MASS EQS or, as applicable, the MASS EQS Personnel including and concerning any agreements, obligations, covenants, warranties, or representations contained in these Terms; (c) any failure by MASS EQS to comply with any Applicable Law in the performance of its obligations and its delivery of the Services under these Terms; and (d) any valid claim the Software infringes the intellectual property rights of any third party (for which MASS EQS agrees that it will use commercially reasonable efforts to replace any such portion of the Software with other original intellectual property that has similar functionality).
15.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information includes Client Data; MASS EQS’s Confidential Information includes the Software, the Services, and the terms of this Agreement.
15.2 Exclusions. Confidential Information does not include the following information: (a) information that is known to the Recipient at the time of disclosure, as evidenced by any written documents in the possession of the Recipient or which may be substantiated by equivalent means of evidence; (b) information that is available to the general public at the time of disclosure to the Recipient or is subsequently made available to the general public, without restrictions as to its use or disclosure, without fault of the Recipient; (c) information that is disclosed to the Recipient by reason by another person or entity having the right to disclose or publicize it; (d) information that is intentionally distributed without restrictions as to confidentiality by the Disclosing Party.
15.3 Non-Disclosure and Protection of Confidential Information. The Recipient will, (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care), (b) not use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations or exercise its rights under this Agreement, and (c) except as otherwise authorized by the Disclosing Party in writing, limit the access to Confidential Information of the Disclosing Party to those of its and its directors, officers, employees, contractors, representatives, and affiliates (“Recipient Parties”) who have a need to know of the Confidential Information solely for the purpose set out in and consistent with this Agreement, and only to the Recipient Parties who are under an enforceable legal obligation to maintain the Confidential Information in the strictest confidence under the same conditions as set out in this Article 6, and/or have signed confidentiality agreements with the Recipient containing protections no less stringent than those herein. The Recipient shall be responsible in all respects (directly and indirectly) for any disclosure of the Disclosing Party’s Confidential Information in violation/breach of this Article 15.
15.4 Prohibitions. With the exception of any disclosure permitted by the foregoing, the Recipient hereby agrees not to sell, license, transfer, publish, disclose, display, make available to any Person, the Confidential Information of the Disclosing Party. In the event of a loss of any item containing Confidential Information of the Disclosing Party, or other instance as a result of which the unauthorized disclosure of Confidential Information is suspected (or ought reasonably to be suspected) to have occurred, the Recipient agrees to promptly notify the Disclosing Party in writing upon discovery of such loss.
15.5 Compelled Disclosure. In addition, the Recipient may disclose the Confidential Information of the Disclosing Party to the extent that the Recipient is compelled under the Applicable Law of Canada, to make such disclosures, provided that where the Recipient is being compelled to disclose any such Confidential Information, the Recipient shall provide the Disclosing Party with prompt notice (to the extent permitted by Applicable Law), to allow the Disclosing Party to seek one or more protective orders, or other appropriate remedies to prevent or limit such disclosure, and the Recipient will co-operate with the Disclosing Party and its legal counsel to the fullest extent to obtain any such protective orders or other remedies. If such protective orders or other remedies are not obtained, the compelled Recipient will only disclose that portion of the Confidential Information that the Recipient legally compelled to disclose, and only to such Person(s) to which such Party is legally compelled to disclose.
15.6 Equitable Relief. The Recipient hereby acknowledges and agrees that it would be damaging to the Disclosing Party if Confidential Information of the Disclosing Party which the Recipient has or will come into its possession or knowledge in connection with the Agreement ,or the performance of its obligations hereunder, is used other than is authorized under this Agreement or is disclosed to any Person. It is understood that such damages may be difficult to calculate, that monetary damages alone may not be a sufficient remedy for any breach of the Confidentiality obligations contained in this Article 6, and that such breach will cause irreparable damage to the Disclosing Party. It is hereby agreed that upon any such breach, or threatened breach, by the Recipient, the Disclosing Party wishing to protect its Confidential Information will be entitled to seek and obtain equitable relief, including injunctive relief and specific performance, or any other relief as may be granted by any court, without the necessity of proving actual damages or posting of security or a bond.
15.7 Destruction. Each Party, upon request of the other Party or within thirty (30) days after termination of this Agreement (whichever is earlier), agrees to return and cause its representatives, agents and contractors to return, all copies of Confidential Information belonging to or provided by the other Party or destroy such copies as directed by that Party and certify their destruction.
15.8 Privacy and Personal Information. Each Party agrees that it will not, without the prior written consent of the other Party, disclose or make available any Personal Information (as that term is defined in the applicable Privacy Laws) (“Personal Information”) to any other Person except for designated employees, agents, representatives or contractors of such Party, who have a need to access the Personal Information in order to fulfill the terms of this Agreement or any Schedule, and who have been contractually bound to maintain the privacy of such Personal Information. Each Party agrees that Personal Information provided to it by the other Party shall only be used for such purposes as are specified herein and neither Party shall sell, transfer or disclose such Personal Information to any other Person. The Parties will comply with all Privacy Laws and Applicable Law with respect to the use, destruction, retention and security of the Personal Information, under this Agreement.
15.9 Publicity and Promotion. Upon execution of this Agreement, MASS EQS shall be permitted to disclose that the Client is a client of MASS EQS, and to describe the Services provided to the Client, but the specific terms of this Agreement shall remain confidential. The Provider shall be entitled to use the Client’s business name and logo on the Provider’s website or in other promotional materials to identify the Client as a client of the Provider.
16.1 Non-Solicitation. During the term of these Terms, and for a period of two (2) years[DE4] following its termination for any reason, the Client agrees that it will not, directly or indirectly, in any manner whatsoever, whether as principal, agent, employee, or otherwise, individually or in conjunction with any person (a) hire, attempt to hire, induce or attempt to induce any employee or independent contractor of MASS EQS, to leave his or her employment or work engagement contract with such other party or (b) interfere in any adverse material way with the business relationship between MASS EQS and any of its customers, potential customers, employees, contractors, suppliers or others with whom such other party has a business relationship.
17.1 Termination Without Cause (for Convenience). Either Party may terminate these Terms for convenience by providing notice to the other. If you/Client terminates these Terms, it must provide sixty (60) days’ prior written notice to MASS EQS; and if the MASS EQS terminates these Terms, it must provide thirty (30) days’ prior written notice to you/Client.
17.2 Termination by you/Client Prior to Renewal. Except in the case of a month-to-month Term for Services, you/the Client may terminate these Terms by providing written notice to MASS EQS at least (60) days prior to the end of the then-current Term. For any month-to-month Terms for Services (if applicable), you/Client may provide thirty (30) days’ prior written notice to terminate these Terms. For greater certainty, such notice may be given prior to the end of such current term, but will only take effect at the end of the then-current Term.
17.3 Termination with Cause (Breach). Either party may terminate these Terms if the other party materially breaches these Terms, including any failure to make Payments when due, and such other party fails to cure such breach in all material respects within thirty (30) days after being given notice of the breach from the non-breaching party.
17.4 Termination for Insolvency or Change of Control. Either Party may terminate these Terms, upon written notice to the other party, if such other Party (a) ceases to carry on business; (b) in the event that there is a material change in control in such other Party concerning any matter which relates to control of their business, including the sale of all or substantially all of the assets of such other Party to a third party, the legal or beneficial ownership of no less than a majority of such other Party’s shares purchased and held by a third party, or an amalgamation, arrangement, recapitalization or reorganization of such other Party (collectively, a “Change in Control”); or (c) such other Party or one of its direct shareholders is or becomes subject to any of the following events, including events in the nature of or analogous to any of the following): (X) bankruptcy; (Y) any form of voluntary or involuntary insolvency administration or liquidation, including where it has an administrator, examiner or receiver appointed to it, its property and assets or its affairs, but excluding where such administration or liquidation is voluntarily entered onto for the purpose of carrying out a reconstruction or amalgamation while solvent; or (Z) entering onto a scheme or voluntary arrangement with its creditors for partial discharge of indebtedness.
17.5 Automatic Termination. These Terms will automatically terminate and be of no further force and effect upon the earlier of, (a) the expiry of the Term and where the Parties have not agreed to any Renewal Terms in accordance with Section 17.2 above; (b) termination for cause where breach has not been cured within the time limits set out therein in accordance with Section 17.3; or (c) the non-acceptance by you/Client of any amendments, changes, or modifications to these Terms as further set out in Section 19.9 (General) below.
17.6 Termination and Suspension of Users. Notwithstanding any provision of these Terms, MASS EQS reserves the right, in its sole discretion, without any notice or liability to Administrator or any User to, (a) terminate a User or Client’s license to use the Software, or any portion thereof; (b) block or prevent a User or Client’s future access to and use of all or any portion of the Software; (c) change, suspend, or discontinue any aspect of the Software; and (d) impose limits on the Software.
(a) each party shall promptly return and deliver or caused to be delivered to the other party, all papers, databases, documents, software programs, and other tangible items and materials (including any copies thereof) containing, constituting, reflecting, incorporating, or based on the other party’s Confidential Information (as described below) in its possession or under its control, or on request, destroy such materials and certify that it has done so;
(b) upon a request by you/Client within thirty (30) days of the termination of this Agreement, MASS EQS will, provide to you/Client a copy of the Client Data in a format that is readable using commercially available third-party software (e.g. .csv or .xlsx);
(d) the licenses granted to the Client, and its Users by way of the Administrators in Section 8.1 (License to Software) Terms shall terminate and the Client and Users shall cease using the Software and any Services in relation thereto.
Notwithstanding the foregoing, you/Client shall not be discharged of its duties to pay any monies and/or make any Payment obligations to MASS EQS.
18.1 Governing Law. These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. These Terms shall be treated, in all respects, as an Ontario contract.
18.2 Dispute Resolution and Arbitration. Except where prohibited by applicable laws, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to (a) these Terms; (b) the Software and/or the Services; (c) oral or written statements relating to these Terms or the Software and/or the Services; or (d) the relationships that result from these Terms, the Software and/or the Services (collectively, a “Claim”) will be referred to and determined by a sole arbitrator (to the exclusion of the courts). Except where prohibited by applicable laws, you waive any right you may have to commence or participate in any class action against MASS EQS related to any Claim and, where applicable, you also agree to opt-out of any class proceedings against MASS EQS. If you have a Claim, you should give written notice to arbitrate at the address specified in these Terms, the Order Form, or applicable Schedule. If we have a Claim, we will give you notice to arbitrate at your address provided in your Registration Data, or as provided in the Order Form, or applicable Schedule. The arbitration will be conducted by one arbitrator pursuant to the commercial arbitration laws and rules in effect on the date of the notice in the Province of Ontario.
18.3 Waiver. Except where prohibited by applicable laws, you hereby waive any right you may have to commence or participate in any action against MASS EQS related to any Claim and, where applicable, you also agree to opt-out of any class proceedings against MASS EQS. If either party has a Claim against the other, such party is required to provide notice in writing to the other party of such Claim and its intention to proceed with arbitration.
18.4 Forum Selection; and Courts. To the extent arbitration is not prohibited under applicable laws, you agree that all Claims will be heard and resolved in a court having jurisdiction and competence over the matter, in Toronto, Ontario. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts.
18.5 Injunctive Relief. Notwithstanding anything contained in this Agreement to the contrary, either party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction whenever the facts or circumstances would permit a party to seek such relief.
19.1 Survival. Article 1(Definitions), Article 6 (Content), Article 7 (Client Representations, Responsibilities, and Authorized Use), Article 10 (Fees, Payments, Processing, and Services) Sections 11.2 to 11.7 of Article 11 (Intellectual Property), Article 12 (Linked Sites) Article 13 (Disclaimer and Limitation of Liability), Section 14 (Indemnification), Article 15 (Confidentiality), Article 16 (Non-Interference), Article 17 (Termination), Article 18 (Governing Law; Dispute Resolution; and Arbitration) and Article 19 (General), shall survive any termination of these Terms.
19.2 Relationship. Nothing herein shall be construed as implying an employment, partnership, or joint venture relationship between any Client and MASS EQS. MASS EQS is not an employee of any Client and is not entitled to any benefits that the Client may provide to its employees. Nothing herein shall be construed as empowering either party to act as a representative or agent of the other party. Neither party shall have the authority to enter onto any contract, nor to assume any liability, on behalf of the other party, nor to bind or commit the other party in any manner, except as expressly provided in these Terms.
19.3 Force Majeure. Except as expressly provided otherwise in these Terms, dates and times by which MASS EQS is required to perform under these Terms, or a Schedule (except for any Payment obligation) will be postponed automatically to the extent and for the period of time that the Client or MASS EQS, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a party). The following events are deemed to be outside of a party’s reasonable control:acts of God, acts of government, epidemics, pandemics, floods, fires, earthquakes, tsunamis, explosions, catastrophes and other potential disasters, acts of war, military invasion and occupations, international and internal civil conflict and hostilities (whether war is declared or not), acts of public enemies and terrorist threats or acts, riots, government order or law, sanctions, embargoes, or blockades in effect on or after the date of this Agreement, action by any governmental authority; national or regional emergencies; strikes, labour stoppages or slowdowns, or other industrial disturbances; and other similar events and disturbances beyond the reasonable control of each Party, and provided that such events and disturbances could not have been reasonably foreseen and the risk/and or consequences of such causes mitigated on a commercially reasonable basis. A party seeking to rely on this Section 19.3 must, (i) notify the other party immediately and in detail of the anticipated or actual commencement of and the cause of postponement; (ii) notify the other party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and (iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available.
19.5 Notices. Notices that we give to you (other than notice of amendment of these Terms), may be provided in any of the following ways. First, we may email you the contact information you provide in the Order Form or any registration data. Second, we may post a notice on the Software. It is your responsibility to periodically review the Software for any notices we post.
19.6 Assignment. The Client may not assign these Terms or any of its rights, benefits, warranties, or obligations hereunder, in whole or in part, without the prior written consent of MASS EQS, which consent will not be unreasonably withheld, and any attempt to assign these Terms, in whole or in part, without such prior written consent is void. MASS EQS may assign any of its rights and obligations under these Terms at its sole discretion.
19.7 Severability. Any provision of these Terms, which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of these Terms, all without affecting the remaining provisions of these Terms or affecting the validity or enforceability of such provision in any other jurisdiction.
19.8 Entire Agreement. These Terms and the Schedules constitute the entire agreement between the Parties with respect to the subject matter of these Terms and supersede all previous negotiations, proposals, commitments, writings, and understandings of any nature whatsoever.
19.9 Modification of Terms; and Amendment. MASS EQS reserves the right at its sole discretion to modify (in whole or in part) at any time, these Terms, or any of policies, guidelines, obligations, documents, commitments, representations, and warranties (if applicable) to the Software and/or our Services, by:
(a) posting a notice on MASS EQS’s website;
(b) posting a notice on the Software;
(c) posting a notice on the Order Form or any applicable Schedule; or
(d) e-mailing you, the Client, and/or the Client’s Administrator(s).
MASS EQS will also update the “Last Updated” date at the top of these Terms. You are responsible for checking these Terms whenever you access or use the Software and/or request the Services. By continuing to access or use the Software, and/or by having submitted an Order Form or applicable Schedule for Services, you are indicating that you accept the changes, modifications, and amendments to the terms of this Agreement and that you agree to continue to be bound by such modified and amended terms of these Terms. If any such modified terms of these Terms are not acceptable to you, you must stop accessing and using the Software, and any such Services we provide to you will be terminated. Any termination of these Terms resulting from your non-acceptance of any modified terms of these Terms will not relieve you of any of your Payment obligations under these Terms, the Order Form, or any applicable Schedule.
19.10 Waiver. No term or provision of these Terms is deemed waived and no breach excused unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
19.11 Fully Negotiated Agreement. Clients and MASS EQS acknowledge and agree that all of the provisions of these Terms, and any corresponding Schedule, have been fully negotiated, that neither of them shall be deemed the drafter of these Terms, and that, in construing these Terms in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favour of one party on the ground that such provision was drafted by the other party.
19.12 Language. The Parties have required that these Terms and all deeds, documents and notices relating to these Terms be drawn up in the English language. Les parties aux présentes ont exigé que le présent contrat et tous autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.
19.13 Questions. If you have any questions regarding these Terms or your use of the Services, please contact us here:
Mass Equipment Solutions Inc. 10 Milner Business Court, Suite 300, Scarborough, Ontario, Canada M1B 3C6 firstname.lastname@example.org