Terms & Conditions
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING THE FREE TIER, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Services Agreement (“Agreement”) is between Strategy Inc. (“Company”) and the Customer referenced in the Order Form, online portal or other agreement that incorporates this Agreement.
The effective date of this Agreement is the earlier of: (i) the date when Customer signs the Order Form; (ii) registers or begins to use Company Services or Professional Services; or (iii) signs this Agreement (the “Effective Date”).
For good and valuable consideration, the Parties agree to the following:
1. Definitions.
(a) “Change Order” means a document describing the agreed-upon changes to a SOW.
(b) “Coach” means an individual certified by the Company to administer and interpret the Services.
(c) “Corporations” means a corporate entity that purchases the Services for its employees, contractors, directors, officers, and other personnel.
(d) “Customer” means any party who purchases the Services, including but not limited to Coaches, Corporations, or individuals, as applicable.
(e) “Customer Data” means any data submitted or uploaded to the Services by the Customer and (b) Customer-specific output generated from the use of any Services created by Customer-owned data.
(f) “Order Form” means each order form entered into by the Parties for Services. Order Forms may be submitted and accepted electronically.
(g) “Party” or “Parties” means Company or Customer, as applicable.
(h) “Professional Services” means the services provided by the Company to a Customer under a SOW.
(i) “Company Intellectual Property” means all intellectual property provided to Customer in connection with the Agreement, Order Form, or SOW or Change Order.
(j) “Services” means the self-assessment surveys provided by the Company.
(k) "Statement(s) of Work” or “SOW(s)” means any statements of work, including any changes and modifications to them, that describe the Professional Services to be provided by Company to the Customer.
2. Use.
(a) Use of Services. The Services are provided solely for educational, developmental, and informational purposes. The Services are designed to provide insights into personality traits and behavioral tendencies to facilitate self-reflection. The Services are not designed, intended, or validated to be used as a sole or primary basis for "High-Stakes Decision-Making." This includes but is not limited to: (i) Employment Decisions: Hiring, termination, promotion, or demotion; (ii) Clinical Diagnosis: Identifying, treating, or diagnosing any psychological, medical, or mental health condition; and (iii) Determining fitness for duty or suitability for legal or financial obligations. Customer acknowledges and agrees that any actions taken, or decisions made based on the Services are at Customer’s sole risk and discretion. The Services do not constitute medical, psychological, legal, or employment advice. If a Customer requires psychological or career counseling, Customer should seek the services of a licensed professional. Coaches, and Corporations represent that the Services will only be used as an advisory supplement to other objective criteria and professional judgment.
(b) Customers will not: (i) use the Services as a clinical or diagnostic tool; (ii) use the Services in any manner that violates the Canadian Human Rights Act or any equivalent provincial human rights or employment standards legislation; (iii) modify, reverse-engineer, or claim ownership of the underlying scoring methodology or algorithms. It is the sole responsibility of the Coach or Corporation to secure express written consent from any individual participant before accessing their results; the Company disclaims all liability arising from a Coach’s or Corporation’s failure to obtain such consent.
(c) Coaches:
(i) The Coach shall utilize the Services and access Participant reports only for individuals from whom the Coach has obtained prior, express, and written consent. The Coach represents and warrants that they will: (i) use the results solely for the purpose of the specific coaching engagement authorized by the Participant; and (ii) maintain strict confidentiality of the results, and shall not share, disclose, or discuss a Participant’s results with any third party (including the Participant’s employer or family members) without a separate, specific written authorization from the Participant.
(ii) The Coach’s right to utilize the Services is strictly conditioned upon their ongoing compliance with the Company’s Certification Guidelines [link], which are hereby incorporated by reference into these Terms. The Coach acknowledges that these Guidelines may be updated from time to time by the Company in its sole discretion, and continued use of the Services constitutes acceptance of such updates.
(iii) The Coach must maintain an "Active Status" to access the Platform. This requires: (i) Successful completion of the initial Company Certification Program; and (ii) Completion of mandatory recertification requirements or exams as determined by the Company (typically every three (3) years, or as otherwise notified). The Company reserves the right to charge reasonable fees for recertification training and administration.
(iv) The Company reserves the right, in its sole and absolute discretion, to immediately revoke a Coach’s certification, terminate their access to the Platform, and cancel any unused assessment credits (without refund) for any of the following reasons: (i) any breach of these Terms, the Coaching Guidelines, or the underlying platform provider terms of service; (ii) failure to complete mandatory recertification within the required timeframe; (iii) any act or omission by the Coach that, in the Company’s sole opinion, may cause harm to the Company’s business, brand, reputation, or Intellectual Property; (iv) evidence of unethical coaching practices or the use of the Services for unauthorized clinical or diagnostic purposes.
(d) Usage Data. The Company may collect and use anonymized information derived from Customer use of the Services (“Non-Identifiable Aggregated Data”) for the Company's reasonable business purposes, including but not limited to improving the Services, longitudinal time studies, generic information, and research purposes. The Company may (i) make Non-Identifiable Aggregated Data publicly available in compliance with applicable law, and (ii) use Non-Identifiable Aggregated Data to the extent and in the manner permitted under applicable law.
(e) Professional Services. Customer may request that the Company provide certain Professional Services. Subject to the payment of all applicable fees for such Professional Services, Company will provide Professional Services per the terms and conditions of the SOW and the parts of this Agreement that apply to Professional Services.
3. Fees.
(a) Unless otherwise provided in the relevant Order Form, online portal, or SOW, Company will invoice the Customer: 1. Before starting the Professional Services; or 2. on the Effective Date for Services, and the Customer will pay the Fees in respect of such invoice immediately. All invoices are deemed accepted by the Customer within five business days after they have been delivered to the Customer. Unpaid invoices will incur interest at a rate of 1.5% per month (18% per annum equivalency), calculated monthly (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law), until they are paid in full. The Customer shall be responsible for legal fees incurred by the Company for the collection of any unpaid invoices. The Company reserves the right to change pricing levels, discounts or fee structures at any time. Customer shall make all payments hereunder in Canadian dollars, unless otherwise agreed to by the Parties. All Fees and other amounts payable by the Customer under this Agreement are exclusive of taxes and similar assessments. Other than any taxes imposed on the Company’s income, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder.
(b) Coaches and Corporations may purchase the Services in the form of "Assessment Credits." Each credit entitles the purchaser to one (1) self-assessment and the resulting report. Credits are tied to the account of the purchaser (the "Account Holder") and are not transferable between accounts without the express written consent of the Company. All purchases of Assessment Credits, whether made individually or in bulk, are final and non-refundable. For Coaches and Corporations purchasing Assessment Credits in bulk, the risk of non-use (e.g., due to client cancellation or project termination) remains solely with the purchaser. The Company will not provide pro-rated refunds for unused inventory. Assessment Credits shall remain valid for a period of twenty-four (24) months from the date of purchase (the "Credit Term"). Upon the expiration of the Credit Term, any unused credits remaining in the Account Holder’s inventory will automatically expire and be removed from the account without notice or compensation. It is the sole responsibility of the Account Holder to track their credit inventory and ensure credits are utilized within the Credit Term. The platform provides an inventory dashboard for this purpose, which shall be deemed the "source of truth" regarding credit balances and purchase dates.
4. Confidential Information.
(a) For this Agreement, “Confidential Information” means any information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in the course of Company providing the Services to the Customer and that a reasonable person would consider to be confidential in the circumstances. Confidential Information includes, but is not limited to, the parties’ business information, customer information, trade secrets, the terms of each SOW, and personal information of the parties’ employees, contractors and customers. Confidential Information does not include any information that is disclosed by one party to another party if that information: (i) is at the time of disclosure in the possession of the Receiving Party or any of its Affiliates and was obtained without an obligation of confidence; (ii) is independently developed by the Receiving Party or any of its Affiliates without any use of or reference to the Confidential Information; (iii) is or becomes publicly available without the Receiving Party’s breach of any obligation of confidence; (iv) is acquired by the Receiving Party from a third party who provided the information without breaching any express or implied obligations or duties to the Disclosing Party; or (v) is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party’s prior written consent.
(b) Each of Company and the Customer agree with the other that it shall: (i) take all reasonable steps to maintain the confidentiality of the other party’s Confidential Information; (ii) not copy the Confidential Information except as may reasonably be required by Company in the provision of the Services or Professional Services; (iii) not use the Confidential Information for its own purposes; (iv) safeguard all documents containing Confidential Information against theft, damage or access by unauthorized persons; (v) use the same degree of care with respect to the Confidential Information as it employs with respect to its own proprietary or confidential information of like importance; and (vi) except as required by law or a valid court order, and subject to the Receiving Party informing the Disclosing Party of such legal requirement, only disclose such Confidential Information to those officers, directors, employees, agents, and subcontractors (“Receiving Party’s Personnel”) who need to know in order to perform their obligations under this Agreement. The Receiving Party will ensure that the Receiving Party’s Personnel who need to know the Confidential Information agree to maintain the confidentiality of such Confidential Information on terms no less stringent than the terms of these confidentiality provisions.
(c) Upon termination of the Services, each party will, without undue delay, upon written request from the other party, return to the other party or destroy all Confidential Information of the other party in its possession or control. Notwithstanding anything contained herein to the contrary, Receiving Party shall not be obligated to destroy Confidential Information to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data.
5. Intellectual Property.
(a) Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company, its Affiliates, and its licensors reserve all their right, title and interest in and to the Services, Professional Services, including all their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. All Company Intellectual Property shall be deemed to be Confidential Information of the Company.
(b) License by Customer to Company. Customer grants Company, its affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display Customer Data, each as appropriate for Company to provide and ensure proper operation of the Services, associated systems, and Professional Services. Subject to the limited licenses granted herein, Company acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, or non-Company application.
(c) License by Customer to Use Feedback. Customer grants to Company and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Customers relating to the operation of Company’s or its affiliates’ Services and Professional Services.
6. Representations and Warranties
(a) Each party represents that it has validly entered into this Agreement and has the legal power to do so.
(b) THE SERVICES, INCLUDING ALL ASSESSMENTS, REPORTS, AND CONTENT, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR COLLATERAL. THE COMPANY DOES NOT WARRANT OR GUARANTEE: (i) THAT THE ASSESSMENT RESULTS OR REPORTS ARE ACCURATE, COMPLETE, RELIABLE, OR ERROR-FREE; (ii) THAT THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS OR ACHIEVE ANY PARTICULAR BUSINESS, PERSONAL, THERAPEUTIC, MEDICAL OR COACHING OUTCOME; (iii) THAT THE INTERPRETATIONS PROVIDED BY THE SERVICES ARE "FACT" RATHER THAN SUBJECTIVE DATA DERIVED FROM PARTICIPANT INPUTS; (iv) OR THAT THE USE OF THE SERVICES WILL RESULT IN IMPROVED PERFORMANCE, HIRING SUCCESS, OR PERSONAL WELL-BEING. THE COMPANY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(c) THE SERVICES ARE HOSTED ON A THIRD-PARTY PLATFORM (POINTERPRO). THE COMPANY DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM VIRUSES OR BUGS. THE COMPANY DISCLAIMS ALL LIABILITY FOR ANY TECHNICAL ISSUES, DATA LOSS, OR SECURITY BREACHES ORIGINATING FROM THE THIRD-PARTY PLATFORM INFRASTRUCTURE.
7. Indemnification.
The Coach, and the Corporation, as applicable agree to indemnify, defend, and hold harmless the Company, its affiliates, officers, directors, employees, and agents (collectively, the "Indemnified Parties") from and against any and all third-party claims, liabilities, damages, losses, costs, and expenses (including, without limitation, legal fees on a solicitor-and-his-own-client basis) arising out of or related to: (i) any advice, interpretation, or guidance provided by the Coach to a participant that is based on, or allegedly based on, the Services; (ii) failure by the Coach to obtain express written consent from a participant, or any unauthorized disclosure of a Participant's personal information by the Coach in violation of applicable laws; (iii) the use of the Services by the Coach for high-stakes decision-making including but not limited to hiring or clinical diagnosis in violation of the Permitted Use section of these Terms; (iv) any breach of this agreement or the Coaching Guidelines; or (v) any negligent act, omission, or willful misconduct by the Coach in connection with the Services. If an Indemnified Party seeks indemnification, the Company will provide the Coach, or Corporation, as applicable with prompt written notice of the claim. The Company reserves the right, at its option, to allow the Coach or Corporation, as applicable to assume the defense of the claim with counsel approved by the Company; or direct its own defense, in which case the Coach or Corporation, as applicable, shall reimburse the Company for all legal costs as they are incurred. The Coach or Corporation, as applicable shall not settle any claim that involves an admission of liability or a financial obligation on the part of the Company without the Company’s prior written consent.
8. Limitations of Liability.
(a) THE COMPANY SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOODWILL, WORK STOPPAGE, LOSS OF INFORMATION OR DATA, OR LOSS OF REVENUE OR PROFIT, RESULTING FROM THE PROVISION OF OR RELIANCE UPON THE SERVICES, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE.
(b) SUBJECT TO APPLICABLE LAW, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, COMPANY’S AGGREGATE AND TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED: (A) FOR PROFESSIONAL SERVICES, THE AMOUNTS PAID OR DUE BY THE CUSTOMER TO COMPANY FOR THE SOW THAT GAVE RISE TO THE CLAIM; (B) FOR SERVICES: THE AMOUNTS PAID FOR THE SERVICES. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT, WARRANTY, TORT, OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 4(FEES) EXCEPT AS SET FORTH UNDER APPLICABLE LAW. DAMAGES SET FORTH IN THIS SECTION 9(b) ARE THE PARTIES’ SOLE EXCLUSIVE MONETARY REMEDY AND THE SOLE AND EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT ANY OTHER REMEDY FAILS OF ITS ESSENTIAL PURPOSE. FOR THE AVOIDANCE OF DOUBT, THE PARTIES MAY NOT LIMIT THEIR LIABILITY WHERE PREVENTED FROM DOING SO BY APPLICABLE LAW.
9. Term.
(a) Term. The term of this Agreement begins on the Effective Date and continues until all Services and SOWs hereunder have expired or have been terminated.
(b) Termination. A Coach or Corporation may terminate this Agreement, Services and/or any SOW or change Order for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of the 30-day notice period. Either party may terminate this Agreement, a Services or SOW if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. The Company may, in its sole discretion, terminate this Agreement or any specific Order Form at any time and for any reason (or no reason) by providing the Customer with at least thirty (30) days’ prior written notice. The Company reserves the right to cease offering the Services or any specific assessment tool entirely (a "Service Sunset"). In the event of a Service Sunset, the Company shall provide at least sixty (60) days’ notice to all active Coaches and Corporations.
(c) Termination Refund or Payment. If this Agreement is terminated by Customer under Section 10(c), Company will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by the Company for the Customer’s material breach, bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, Customer will pay any unpaid fees covering the remainder of the term of all Services, and all remaining SOWs to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Company for the period before the effective date of termination. If the Company terminates for convenience, or initiates a Service Sunset, the Company’s only obligation shall be to provide a pro-rata refund for any Assessment Credits that: (i) were purchased by the Customer for a fee; (ii) remain unused in the Customer’s account as of the effective date of termination; and (iii) have not yet reached their two-year expiration date. The refund amount shall be calculated based on the actual price paid by the Customer for the specific unused credits (taking into account any bulk discounts or promotional pricing applied at the time of purchase), less any applicable transaction fees or taxes. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE REFUND DESCRIBED IN THIS SECTION CONSTITUTES THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR TERMINATION FOR CONVENIENCE OR SERVICE DISCONTINUATION. THE COMPANY SHALL HAVE NO LIABILITY FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, OR COSTS INCURRED BY THE CUSTOMER IN TRANSITIONING TO AN ALTERNATIVE SERVICE PROVIDER.
(d) Suspension of Services, Professional Services and Acceleration. If any charge owing by Customer under this Agreement, or any other agreement for Professional Services or Services is 10 days past due, Company may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Professional Services or Services until such amounts are paid in full.
(e) Survival. This Section 10(f) and Sections 1(Definitions), 2(h)(Free trial) 4(Fees), 5(Confidential Information), 6(Intellectual Property), 7(d)(warranty disclaimer) 8(Indemnity), 9(limitation of liability), 10(d)(Termination Refund or Payment )and 1 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
10. Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties concerning the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, concerning such subject matter. If there is a conflict between the terms of a SOW, or Order Form and this Agreement, this Agreement shall prevail unless explicitly overridden with a cross-reference to this provision. For conflicts related to indemnification, intellectual property, limitations of liability, and confidentiality, the terms of this Agreement will always prevail for that conflict.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement, online profile (or to such other address that may be designated by the Party giving Notice from time to time per this Section). All Notices must be delivered to Company by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid), and Company may send Notices to the Customer by email. Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Company be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control, including but not limited to acts of god, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, epidemic, pandemic, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. Company shall notify Customer of such force majeure within ten (10) days after such occurrence by giving written notice to Customer stating the nature of the event, its anticipated duration, and any action being taken to avoid or minimize its effect. The suspension of performance shall be of no greater scope and no longer duration than is necessary, and the Company shall use commercially reasonable efforts to remedy its inability to perform.
(d) Relationship. The parties are independent contractors. This Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties, and no party shall be deemed to be the legal representative of any other party for this Agreement. No party shall have and shall not represent itself as having any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in this Agreement.
(e) Subcontractors. The Company may, from time to time in its reasonable discretion have third parties perform any part of the Services. The Company will remain responsible for such third parties and their compliance with this Agreement.
(f) Headings. The headings used in this Agreement are for convenience and reference only and shall not affect the construction or interpretation of the Agreement.
(g) Amendment and Modification; Waiver. The Company reserves the right, in its sole discretion, to modify, update, or replace this Agreement (including any Guidelines or Service descriptions) at any time. If a change is material (as determined by the Company), Company will provide notice at least thirty (30) days prior to the new terms taking effect. Notice may be provided via: (i) an email to the address associated with Customer account; (ii) a notification on the platform dashboard or (iii) a revised "Last Updated" date at the top of these Terms. Customer’s continued access to or use of the Services after the effective date of any such changes constitutes its binding acceptance of the revised Agreement. If you do not agree to the new terms, your sole remedy is to stop using the Services and, if applicable, request a refund for unexpired credits. No individual amendment to or modification of this Agreement requested by a Customer is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly agreed to in writing and signed by the Party waiving such right(s). No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(h) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect their original intent as closely as possible in a mutually acceptable manner so that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(i) Disputes; Mediation; Binding Arbitration; Governing Law; Emergency Relief.
(i) Continued Performance. Both parties must continue performing their respective obligations and responsibilities under this Agreement while any Dispute is being resolved per this Section 11(f), unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.
(ii) Arbitration. If negotiation does not resolve the dispute within forty-five (45) days of said notice, all claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration under Ontario Law in the City of Toronto, Ontario. The arbitration shall be conducted on a confidential basis according to the Commercial Arbitration Rules of the Canadian Arbitration Association (CAA). Any such arbitration shall be conducted by an arbitrator experienced in software and web services, and professional services. The Parties reserve the right to, acting reasonably, object to any individual who shall be employed by or affiliated with a competing organization or entity. Judgment upon the award of arbitration may be entered in any court of competent jurisdiction. The arbitrator shall not have any authority to award non-compensatory, punitive or exemplary damages. For emergency or interim relief, the parties also agree that the CAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings.
(iii) This Agreement shall be governed by and construed following the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to conflict of law principles, and the parties agree to attorn to the exclusive jurisdiction of Ontario.
(j) Assignment. The Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the Company’s prior written consent (which may be unreasonably withheld); Company may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
(k) Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
(l) U.N. Convention. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
(m) Publicity. Customer will display the Company logo on its instance of the Services. The Company may publicly disclose the relationship with Customer and use Customer’s logo in the Company’s advertising.
(n) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7(Confidentiality) or, in the case of Customer, Section 2(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(o) Expenses. All costs and expenses incurred in connection with this Agreement and each other agreement, document and instrument contemplated by this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs and expenses.
(p) Legal Fees and Costs. In the event of a dispute arising under this Agreement, whether a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable legal fees and costs, including attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as in determining or quantifying the amount of recoverable legal fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable.
(q) Gender, Plural and Singular. In this Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive and “including” is not limiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions of this Agreement may be made accordingly as the context requires.
(r) Alterations. No alteration or amendment to this Agreement shall take effect unless it is in writing, duly executed by each of the parties.
(s) No Strict Construction. The language in all parts of this Agreement shall in all cases be construed as a whole and neither strictly for, nor strictly against, any of the parties to this Agreement.
(t) Enurement. The Agreement shall enure to the benefit of and be binding upon the parties and, except as otherwise provided or as would be inconsistent with the provisions of this Agreement, their respective heirs, executors, administrators, successors and permitted assigns.
(u) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be the same agreement.