Terms of Service

PLEASE READ THE PATHFACTORY TERMS OF SERVICE (the “TERMS”) CAREFULLY BEFORE ACCESSING AND USING THE SERVICE.

These TERMS OF SERVICE (the “Terms”) form a legally binding contract between the Customer (“Licensee” or “you” or “the Customers”) and PathFactory Inc. and its affiliates (the “Corporation”, “us”, “we” or “our”).  We provide the HQ (as defined below) to the Customer subject to and conditioned upon the Terms outlined below.

The Corporation wishes to provide access to its PathFactory software-as-a-service and provide certain associated professional services to Licensee and Licensee wishes to be granted such access and services.

BY ACCESSING AND USING THE HQ IN ANY WAY, the Customer and its authorized users AGREE TO BE BOUND BY THE TERMS, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF the Customer DOES NOT AGREE TO THE TERMS, DO NOT ACCESS AND USE THE HQ.

A. Definitions

1. The following definitions apply in the Terms:

a) “PathFactory Content” means any Content available through the HQ that originates from the Corporation, including but not limited to information about the HQ and how to use it, the look and feel of the HQ, information about the Corporation and its other services and any other Content uploaded, published, posted or contributed in any other manner by the Corporation.

b) “Confidential Information” means all information of a confidential nature relating, directly or indirectly, to the Customer or the Corporation or any of each such party’s respective subsidiaries or their respective assets or operations that is provided to the other party hereto, including without limitation the Terms.

c) “Customer” means any entity or user which accesses, views, or manages the HQ.

d) “Content” means any and all content available through the HQ and includes but is not limited to web pages, presentations, blogs, data, profiles, narratives, files, images, video, surveys and any other information in any format and any other materials relating thereto.

e) “Documentation” means all written materials provided to the Customer to assist the Customer in the Customers use of and access to the Customers HQs and Content Experiences, whether provided electronically or in physical format.

f) If applicable, the “Order Form” means the customized PathFactory Order Form which is incorporated into the Terms by reference and is legally binding.

g) “HQ” means the online collaborative authoring environment that is dedicated to the Licensee and that assists the Licensee to manage the creation and sharing of Content Experiences, basic user policy management, analytics and access rights.

h) “Content Track”, “Content Experience” or “LookBook” means an interactive digital experience created from The Customers Content that can be embedded into online presences and shared and promoted as part of digital campaigns in various marketing channels.

i) “Support” means (i) phone, email and video conference support to Licensee and Authorized Users regarding the use and function of an HQ or LookBook Content Experience and (ii) HQ software maintenance and updates provided to Licensee.

j) “Professional Services” means providing services as outlined in associated Order Form. Unless otherwise agreed, all Professional Services are performed remotely.

k) “Authorized User” or “Author” means a party that the Customer have authorized and paid for the right to access and use the HQ and who views, uses, contributes to any of The Customers Content accessible via the HQ, through use of the Customers HQ.

l) “The Customers Content” means the content the Customer or an authorized author uploads, publishes, posts, or contributes in any other manner to the HQ.

m) “Affiliate” means any entity, now or in the future, that controls, is controlled by, or is under common control with Licensee. An entity will be deemed to control another entity if it has the power to direct or cause the direction of the management or policies of such entity, whether through ownership, voting securities, contract or otherwise.

n) “PathFactory Property” includes, but is not limited to, any and all data, information or code (source and object), or features of, or the look and feel of our websites or the HQ, including without limitation any and all intellectual property rights therein and thereto, that exists and that is/are created, generated, developed, or otherwise come/comes into being through either (i) our provision to the Customer of access to service or software or the HQ or (ii) through our further development, updates, modifications, fixes and enhancements to the HQ, the underlying software and services to the HQ or our website.

B. Grant of License

1. License.

a) By entering into an Order Form, we hereby grant to the customer outlined in the Order Form a nonexclusive, limited, license to use, execute and access the HQs, Content Experiences and Documentation for the Customers business purposes. The Customer and its Authorized Users may access and use the HQs and Content Experiences from any location and on any equipment, as set out in the Documentation.

2. License Restrictions.

a) The Customer agrees that their usage of our platform to deliver content experiences may result in the placement of cookies in browsers and they are responsible for ensuring applicable privacy laws are adhered to relating to cookies.

b) The Customer agrees not to (i) modify, adapt, do harm, misuse, nor hack the HQ or (ii) modify another website so as to falsely imply that it is associated with us, or any other of our sites or services.

c) The Customer agrees that it shall not upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages. The Customer also agree that it and its Authorized Users shall not knowingly transmit any worms or viruses or any code of a destructive nature to or over the HQ.

d) We prohibit the use of a HQ for any illegal or unauthorized purpose. Licensee and its Authorized Users agree that, in using the HQ, they will not violate any laws in any applicable jurisdiction (including but not limited to criminal, tort, intellectual property or privacy laws), or violate or breach any third-party rights (including but not limited to proprietary, contractual or privacy rights) or any confidentiality obligations Licensee or its Authorized Users may bear.

3. The parties hereto further acknowledge and agree that:

a) The Terms sets out the terms and rules of the Customer and Authorized Users accessing and using the HQ.

b) Any new features that augment or enhance the current HQ, including the release of new tools, applications and resources, shall be subject to the Terms. Continued use of the HQ after any such changes shall constitute the Customer’s consent to such changes.  If any new tools, applications or resources are subject to an additional fee, such fee will not be charged to the Customer without the Customer’s written agreement.

c) We reserve the right to amend or modify the terms and conditions of the Terms in any manner upon providing the Customer ninety (90) days’ prior notice. Continued use of the HQ after any such changes shall constitute the Customer’s consent to such changes.

C. Authorized Users

1. The Customer shall acknowledge that:

a) All Authorized Users of the HQ must be 18 years old or older.

b) The Customer and each of its Authorized Users are respectively and solely responsible for maintaining the security of their respective HQ account and password(s) in their possession or control. The Customer agrees that we cannot and shall not be liable for any loss or damage from the Customer’s or the Customer’s Authorized Users’ failure to comply with these security obligations.

D. Fees and Payments

1. For access to the HQ, we shall invoice the Customer as per the Order Form with the fees outlined being due and payable as per the terms of the Order Form. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.  Customer shall be responsible for all taxes associated with the license and services other than taxes based on PathFactory’s net income.
2. Fees associated to Professional Services shall be outlined in the Order Form.
3. If we do not receive payment when due for any reason, this may result in the suspension or termination of the Customer’s PathFactory Platform License (HQ) and access to the HQ. If any late payment is not made within 15 days following written demand therefor, we may terminate the Terms, any associated Order Forms and/or the associated HQ(s).
4. All HQ fees and charges are exclusive of all sales taxes, levies, or duties associated with the Customer’s use of the HQ imposed by applicable taxing authorities, and the Customer shall be solely responsible for payment of all such sales taxes, levies, or duties except those based on our net income.

E. Term and Termination

1. The term of the Terms (the “Terms”) begins as of the earlier of the date of the commencement of use of the solution or the date stated in the Order Form, and lasts for a period of one (1) year, automatically renewing for further 1 (one) year periods unless stated otherwise in the Order Form.
2. Either party may terminate the Terms and any associated Order Forms immediately upon notice to the other party if the other party: (i) materially breaches the Terms or any associated Order Form, other than with respect to a payment obligation, and fails to remedy such breach within 15 days after receiving notice of the breach from the other Party, (ii) materially breaches the Terms or any associated Order Form in a manner that cannot be remedied, or (iii) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets, or ceases to operate in the ordinary course of business. In the case of termination for material breach by Licensee, PathFactory shall refund to Licensee, as applicable, any prepaid fees for the unused portion of terminated services on a pro-rata basis, calculated as of the date of the event giving rise to the material breach.We may terminate the Terms and any associated Order Form immediately upon notice to the Customer for material breach of a payment obligation under the Terms or any associated Order Form and failure to remedy such breach within 15 days after receiving notice of the breach from us.
3. These Terms shall automatically terminate concurrent with the termination of the last remaining active associated Order form.
4. Either party may terminate an Order Form by providing to the other party not less than thirty (30) days’ written notice prior to the expiration of the then current upcoming Order Form Renewal Date.
5. Termination of an Order Form does not necessarily terminate the Terms. Termination of the Terms terminates any and all Order Forms associated therewith immediately upon the effective termination date of the Terms.
6. Upon termination of the Terms for whatever reason:

a) We shall terminate all Customers’ PathFactory Platform Licenses and its Authorized Users’ access to the HQ;

b) For 90 days after the date of contract termination we shall not actively prevent the operation of existing Content Experiences created in the Customers HQ that have been shared publicly prior to termination or expiry of the Terms. the Customer will be able to continue to embed and share those Content Experiences in the normal way using the embed code and URL already provided for 90 days after contract termination. the Customer shall not be able to modify or update these same Content Experiences or create new Content Experiences, or access Content Experiences the Customer have not shared publicly prior to termination or expiry of the Terms. However, to the extent requested by Licensee in writing, we shall prevent the operation of all existing Content Experiences created in the Customers HQ sooner than 90 days after contract termination; and

c) Any and all amounts outstanding and any unpaid amounts due and owed to us by the Customer up through the date of termination shall become immediately due and payable.

7. The Customer shall acknowledge and agree that if an HQ is terminated because either the applicable Order Form or these Terms expires or is terminated in accordance with this Section E., we bear no liability to the Customer or the Customers Authorized Users whatsoever if the Customers existing and publicly shared Content Experiences cease to operate fully or at all. 

F. Modifications to the HQ and Fees

1. We reserve the right at any time and from time to time to modify, update, add to or discontinue, temporarily or permanently, features of the HQ provided that the overall utility and quality of the HQ is not diminished. This includes but is not limited to our ability to implement regularly scheduled maintenance updates, fixes and new releases.
2. All fees and charges for HQ access are subject to change upon renewal of the Term of the applicable Order Form provided that we give the Customer sixty (60) days prior written notice of the new fees and charges.

G. Intellectual Property and Content Ownership

1. As between the parties hereto, all right to the Customer’s Content remains with the Customer and, except in order to fulfill our obligations under the Terms, no rights are granted to us.
2. The look and feel of the HQ, PathFactory presentation format and features, and the PathFactory Content and Documentation is copyright ©2017 PathFactory Inc. all rights reserved. Subject to Section I. and to the extent they are subject to copyright protection, the Customer may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without express written permission from us.
3. If any other agreement, contemporaneous or otherwise, between the parties hereto makes reference to or sets out that any work product created, developed or generated under said other agreement or under the Terms becomes or is to become the property of Licensee or that Licensee obtains rights, title and/or interest in and to such property, it is hereby understood between the parties hereto that such property and any rights, title and interest in and to such property is limited to The Customer’s Content, and in no way creates any right, title or interest in and to LBHQ Property, PathFactory Content, Documentation or any underlying software, other than what is explicitly granted herein.
4. The Customer shall acknowledge and agree that neither we, nor any of our employees, officers, directors, shareholders, consultants or advisors bear any liability whatsoever for what you and the Customer’s Authorized Users uploads or publishes on and to the HQ or for how the Customer or the Authorized Users use or deal in such Content. The Customer agrees to use the HQ and provide its Authorized Users access to the HQ at the Customer’s sole risk.
5. The Customer shall acknowledge and agree that we may, but have no obligation to, remove Content and suspend or terminate accounts containing Content that we determine in our sole reasonable discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or that violate any party’s rights or the terms of the Terms.

H. Indemnification

1. The Customer shall defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that its Content, or from its Authorized User’s use of the HQ, infringes or misappropriates the rights of a third party or violates any applicable law, and the Customer shall indemnify us for any and all damages finally awarded against, and for reasonable expenses, including but not limited to legal fees, incurred by us in connection with any such claim, demand, suit or proceeding; provided, that we (a) promptly give the Customer written notice of the claim, demand, suit or proceeding; (b) give the Customer sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that the Customer may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases the Corporation of all liability); and (c) provide to the Customer all reasonable assistance, at the Customers sole expense. If for whatever reason the Customer do not defend such claim, demand, suit or proceeding, we may elect to defend ourselves, and the Customer shall then indemnify us for any and all damages finally awarded against, and for reasonable expenses, including but not limited to legal fees, incurred by us in connection with any such claim, demand, suit or proceeding.
2. We shall defend the Customer against any claim, demand, suit or proceeding made or brought against the Customer by a third party alleging that the HQ or any LookBook or Content Experience, excluding The Customers Content, infringes or misappropriates the intellectual property rights of a third party or violates any applicable law, and we shall indemnify the Customer for any and all damages finally awarded against, and for reasonable expenses, including but not limited to legal fees, incurred by the Customer in connection with any such claim, demand, suit or proceeding; provided, that the Customer (a) promptly give us written notice of the claim, demand, suit or proceeding; (b) give us sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that we may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases the Licensee of all liability); and (c) provide to us all reasonable assistance, at our sole expense. If for whatever reason we do not defend such claim, demand, suit or proceeding, the Customer may elect to defend the itself, and we shall then indemnify the Customer for any and all damages finally awarded against, and for reasonable expenses, including but not limited to legal fees, incurred by the Customer in connection with any such claim, demand, suit or proceeding.

I. Confidentiality

1. Each party hereto (the “Receiving Party”) receiving Confidential Information from the other party hereto (the “Disclosing Party”) shall at all times hold and maintain the Confidential Information of the Disclosing Party in strictest confidence for the sole and exclusive benefit of the Disclosing Party (and to ensure that its respective employees, representatives and agents do the same) and shall not use, communicate or divulge such Confidential Information, whether directly or indirectly, except with the written consent of the Disclosing Party or to the extent required by law or to their employees, representatives or agents to the extent necessary for the proper performance of the Receiving Party’s obligations under the Terms. The Receiving Party’s obligations under this clause do not extend to information that is: (a) publicly known at the time of disclosure under the Terms or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party prior to disclosure by Disclosing Party; or (c) otherwise learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party’s representatives.  The obligation under this clause shall remain in effect for the duration of the Term and thereafter for a period of two (2) years.
2. If the Receiving Party receives a request or is required by law to disclose all or any part of the information contained in the Disclosing Party’s Confidential Information, the Receiving Party shall, to the extent permitted by law (i) immediately notify the Disclosing Party of the existence of and the terms and circumstances surrounding the request or requirement, (ii) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow the request or lawfully avoid the requirement, and (iii) at the Disclosing Party’s request and cost, take all necessary steps to seek a protective order or other appropriate remedy.
3. In the event of any breach of this clause I, the parties hereto agree that the non-breaching party shall suffer irreparable harm and the total amount of monetary damages for any injury to the non-breaching party from any such breach may be difficult or impossible to calculate and could therefore be an inadequate remedy. Accordingly, the parties hereto agree that the non-breaching party shall be entitled to seek temporary and permanent injunctive relief against the breaching party and its employees, representatives or agents, in addition to the other rights and remedies to which the non-breaching party may be entitled at law, and under the Terms, for any violation of this clause I.
4. Each party hereto agrees, upon the expiration or earlier termination of the Terms for any reason, or upon demand of a Disclosing Party, to return to the Disclosing Party, or destroy (as the Disclosing Party may direct), all of the Disclosing Party’s Confidential Information in its possession or control and not retain any copies, extracts or other reproductions in whole or in part of such Confidential Information (except to the extent required by law or relevant regulatory body). The Receiving Party further agrees to destroy all documents, memoranda, notes or other writings prepared by it or any of its directors, officers, agents, employees, representatives or advisers for it or in its possession which incorporate any of the Disclosing Party’s Confidential Information (except to the extent required by law or relevant regulatory body). If the Disclosing Party should so require, the Receiving Party shall provide to the Disclosing Party within thirty (30) days of the Disclosing Party’s written request for the return or destruction of its Confidential Information under this clause I, a certificate executed by a duly authorized officer of the Receiving Party confirming that the Receiving Party has complied with all of its obligations under this clause.
5. Notwithstanding anything to the contrary in the Terms, the Customer hereby permit us to disclose publicly that the Customer are a client of ours, without disclosing any Confidential Information.

J. Representations, Warranties and Disclaimers

1. THE REPRESENTATIONS, WARRANTIES AND CONDITIONS SET FORTH IN THE TERMS ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT WHEN OTHERWISE STATED IN WRITING, THE SERVICES AND PRODUCT PRODUCED UNDER THE TERMS ARE PROVIDED TO the Customer “AS IS” AND “AS AVAILABLE”, THAT IS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND/OR SERVICES PROVIDED UNDER THE TERMS RESTS SOLELY WITH YOU.
2. EXCEPT AS OTHERWISE STATED ABOVE, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES RELATED TO INFORMATION OR BUSINESS ADVICE PROVIDED, WARRANTIES RELATED TO OUTCOMES BASED ON INFORMATION OR ADVICE PROVIDED, WARRANTIES OF MERCHANTABILITY OR MERCANTILE QUALITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR USE, WARRANTIES OR CONDITIONS ARISING BY STATUTE OR OTHERWISE IN LAW, OR WARRANTIES OF ANY PRODUCTS OR SERVICES PROVIDED BY THIRD PARTY VENDORS.
3. YOU UNDERSTAND AND AGREE THAT, EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE, OUR LIABILITY FOR DAMAGES FROM ANY CAUSE OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE FEES PAID DURING THE PREVIOUS TWELVE MONTH PERIOD BY the Customer UNDER THE TERMS, AND IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF USE OF ANY SOFTWARE OR HARDWARE, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST DATA, LOST PROFITS OR REVENUE, LOSS OF GOODWILL OR OTHER INTANGIBLE LOSSES OR FOR ANY CLAIM OR DEMAND BY ANY THIRD PERSON, ARISING OUT OF OR RELATED TO THE TERMS OR THE PERFORMANCE OR BREACH THEREOF, EVEN IF ADVISED OF THIS POSSIBILITY.
4. The Customer acknowledges and agrees that the technical processing and transmission of the content on the HQ, including The Customers Content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. As such, we do not warrant or represent in any manner that The Customer’s Content or any other Content on the HQ, retains its integrity or remains readable at all times.
5. We represent that the Corporation maintains policies and practices consistent with maintaining an HQ uptime availability at 99.9%, 24 hours per day and seven days per week. Periodic updates to the HQ may render the system unavailable for periods of time not to exceed 30 minutes.  The Corporation makes best efforts to ensure these updates happen between 10 PM EST Friday and 1 AM EST Sunday.
6. We represent and warrant:

a) The HQ, PathFactory Content and Professional Services do not infringe upon the intellectual property rights of any third parties;

b) We have all the necessary corporate power and authority to own, lease, and operate its assets and to carry on its business as presently conducted and as it will be conducted pursuant to this Agreement;

c) We use commercially reasonable virus protection procedures and devices to reduce the risk of transmitting any worms, viruses or code of a destructive nature to you; and

d) All work performed and services provided hereunder are performed by sufficiently trained and qualified personnel in a good, workmanlike manner.

7. The Customer hereby represents and warrants that it and its Authorized Users are not prohibited or restricted, whether contractually or otherwise, from publishing, reproducing, disclosing, distributing or otherwise using any of the material, data, information or Content, including The Customer’s Content, that is uploaded, posted, published, contributed to or used via the HQ. If they are subject to any third-party terms and conditions regarding said material, data, information or Content, they hereby represent and warrant that by uploading, posting, publishing, contributing to it or using it via the HQ, they (as applicable) are not in breach of said terms and conditions.
8. The Customer hereby represents and warrants that it shall not post any materials within the HQ which violate any laws or regulations in jurisdictions which the materials can be viewed. The Customer hereby agrees it is liable for any misuse of the HQ by its users.

K. Dispute Resolution

1. If any dispute occurs between the parties hereto relating to the application, interpretation, implementation or validity of the Terms, the parties agree to seek to resolve the dispute or controversy through mediation before pursuing any other proceedings. Nothing herein shall preclude either party hereto from seeking injunctive relief in the event that said party perceives that without such injunctive relief, serious harm may be done to the party. Either party to the dispute may serve notice on the other of its desire to resolve a particular dispute by mediation. The mediator shall be appointed by agreement between the parties. The parties agree to attempt to resolve their dispute at mediation. The costs of the mediator shall be shared equally by the parties. If the dispute has not been resolved within thirty (30) days of the notice of desire to mediate, either party may terminate the mediation and proceed to arbitration as set out below.
2. If any dispute or controversy occurs between the parties hereto relating to the interpretation or implementation of any of the provisions of the Terms, and such dispute is not resolved by the mediation provisions set forth above, the dispute shall be resolved by arbitration. Either party may serve notice of its desire to refer a dispute to arbitration. There shall be three (3) arbitrators selected for such arbitration. Each party hereto shall select one arbitrator within five (5) days of receipt of notice of a request for arbitration. The third arbitrator shall be selected by the first two arbitrators. The arbitration shall be held in Toronto, Ontario, provided that the parties will be entitled to appear telephonically or using another remote communication system, provided this does not frustrate the proceedings. The decision arrived at by the arbitrator(s) shall be final and binding and no appeal shall lie therefrom. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitration shall be divided equally between the parties.

L. General Terms

1. Written notice required to be given under the Terms shall be sent to the address(es) set forth in the applicable Order Form.
2. Technical support is available by or email or phone. at the following: support@pathfactory.com or 1-844-224-1655. Such support is only available in English and during regular business hours of Eastern Standard Time.
3. All currency referred to in the Terms is in US Dollars unless stated otherwise in the applicable Order Form.
4. A waiver of any default, breach or non-compliance under the Terms is not effective unless in writing and signed by the party to be bound by the waiver. No waiver shall be inferred from or implied by any act or delay in acting by a party in respect of any default, breach or non-observance or by anything done or omitted to be done by the other party. The waiver by a party of any default, breach or non-compliance under these Terms shall not operate as a waiver of that party’s rights under thee Terms in respect of any continuing or subsequent default, breach or non-observance (whether of the same or any other nature).
5. Nothing in these Terms shall be construed or interpreted to make the Customer and us partners or joint ventures or affiliates of any kind, or to make either one an agent or representative of the other, or to afford any rights to any third party other than as expressly provided herein. the Customer are not authorized to bind us to any contract, agreement or understanding.
6. Unless otherwise set out in the Order Form, the Terms are governed by the laws of Ontario and the laws of Canada applicable therein, excluding any conflict of laws principles. The parties hereby irrevocably attorn to the non-exclusive jurisdiction of the courts of Ontario.
7. Neither party to these Terms may transfer or assign the Terms without the prior written approval of the other party acting reasonably.
8. The Terms shall enure to the benefit of and be binding upon the parties hereto, their successors and any permitted assigns.
9. The Terms may be signed in counterparts and each of such counterparts shall constitute an original document and such counterparts, taken together, shall constitute one and the same instrument. Counterparts may be executed either in original, electronic or faxed form and the parties adopt any signatures received by electronic communication or a receiving fax machine as original signatures of the parties.
10. Each of the parties hereto shall promptly do, make, execute, deliver or cause to be done, made, executed or delivered, all such further acts, documents and things as the other parties hereto may require, acting reasonably, from time to time for the purpose of giving effect to the Terms and shall use reasonable efforts and take all such steps as may be reasonably within its power to implement to the full extent the provisions of the Terms.
11. The headings contained herein are for convenience only and shall not affect the meaning or interpretation hereof.
12. If any provision of these Terms shall be determined by an arbitrator or any court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be severed from the Terms and the remaining provisions shall continue in full force and effect.
13. It is the express wish of the parties hereto that the Terms and all related documents be drawn up in English.
14. Neither party hereto shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party hereto shall use reasonable efforts to mitigate the effect of a force majeure event.
15. The Terms and the other agreements contemplated herein constitute the only agreement between the parties hereto with respect to the subject matter hereof and shall supersede any and all prior negotiations and understandings. The Terms may be amended or modified in any respect by written instrument only signed by each party hereto.