DashThis

1. DEFINITION

The capitalized terms used in this Agreement, in addition to those defined in the Order

Form, have the following meaning:

1.1. "Access Credentials" means any user name, identification number, password,

licence or security key, security token, personal identification number (PIN) or

other security code, method, technology, or device used alone or in combination,

to verify an individual's identity and authorization to access and use the Services.

1.2. “Authorized User” means each of Client’s employees or subcontractors,

authorized to use the Services, as selected by Client in accordance with the

limitations set forth in the Order Form, if any.

1.3. “Aggregate Data” means Client Data in respect of which all identifiers have been

removed, or which has been aggregated with other data, such that the data

cannot identify the Client, the Authorized Users, or any other person.

1.4. “Client Data” means information, data, and other content, in any form or medium,

that is collected, downloaded, or otherwise received, directly or indirectly, from

Client or an Authorized User by or through the Services, including any such

content collected from a third-party application programming interface (API) on

Client’s behalf. For the avoidance of doubt, Client Data does not include Resultant

Data or any other information reflecting the access or use of the Services by or on

behalf of Client or any Authorized User.

1.5. "Client Systems" means Client’s information technology infrastructure, including

computers, software, hardware, databases, electronic systems (including

database management systems), and networks, whether operated directly by

Client or through the use of third-party services.

1.6. "Documentation" means all documents, and other information related to the

Services and Provider Materials that DashThis makes available to the Client in

any form or medium.

1.7. "Harmful Code" means any software, hardware, or other technology, device, or

means, including any virus, trojan horse, worm, backdoor, malware, or other

malicious computer code, the purpose or effect of which is to: (a) permit

unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm

or impede in any manner any: (i) computer, software, firmware, hardware, system,

or network; or (ii) application or function of any of the foregoing or the security,

integrity, confidentiality, or use of any data processed thereby; or (b) prevent

Client or any Authorized User from accessing or using the Services or Provider

Systems as intended by this Agreement.

1.8.“IP Rights” means any and all of the following in any jurisdiction throughout the

world, whether registered, pending registration or not registered: (a) trademarks,

and the goodwill connected with the use of and symbolized by the foregoing, (b)

copyrights, (c) trade secrets and confidential know-how, (d) patents, (e) websites

and internet domain name registrations, and (f) other intellectual property and

related proprietary rights, interests and protections (including all rights to sue and

recover and retain damages, costs and attorneys’ fees for past, present, and

future infringement, and any other rights relating to any of the foregoing).

1.9.“Liability” or “Liabilities” means all losses, damages, fines, costs, liabilities, and

expenses (including the reasonable fees, costs and expenses of attorneys and

other professional and court costs), based on any civil, criminal, statutory or

regulatory claims of liability.

1.10. "Provider Materials" means the Services, Documentation and Provider Systems

and any and all other information, data, documents, materials, works and other

content, devices, methods, processes, hardware, software, and other 

technologies, and inventions, including any deliverables, technical or functional

descriptions, requirements, plans, or reports, that are provided or used by

DashThis or any subcontractor in connection with the Services or otherwise

comprise or relate to the Services or Provider Systems. For the avoidance of

doubt, Provider Materials include Resultant Data and any information, data, or

other content derived from DashThis’ monitoring of Client’s access to or use of the

Services, but do not include Client Data.

1.11. "Provider Systems" means the information technology infrastructure used by or

on behalf of DashThis in performing the Services, including all computers, software,

hardware, databases, electronic systems (including

database management systems), and networks, whether operated directly by DashThis or

through the use of third-party services.

1.12. "Representatives" means, with respect to a Party, that Party and its affiliates'

employees, officers, directors, consultants, agents, independent contractors,

service providers, sublicensees, subcontractors, legal advisors, and any other

authorized representative.

1.13. "Resultant Data" means data and information related to Client’s use of the

Services that is used by DashThis in an aggregate and anonymized manner,

including to compile statistical and performance information related to the

provision and operation of the Services.

1.14. “Reverse Engineering” includes any act of reverse engineering, translating,

disassembling, decompiling, decrypting or deconstructing (including "cable

sniffing" or "black box" reverse engineering) or any method or process of

obtaining or converting any information, data, or software from one form into a

human readable form.

1.15. “Services” means the provision, by DashThis, of the services described in the

Order Form, and of the ancillary support services, as described in Section 2.

2. SERVICES

2.1. Access and Use. Subject to and conditioned on Client’s and its Authorized Users'

compliance with the terms and conditions of this Agreement, DashThis grants

Client and its Authorized Users the right to access and use the Services for the

duration of this Agreement. Such use is limited to Client’s internal use.

2.2. Support Services. DashThis shall provide Client with support pertaining to the

access and use of the Services, in accordance with the terms set forth in

Schedule A of this Agreement.

2.3. Service and System Control. Except as otherwise expressly provided in this

Agreement, as between the Parties:

2.3.1. DashThis has and will retain sole control over the operation, provision,

maintenance, and management of the Provider Materials; and

2.3.2. Client has and will retain sole control over the operation, maintenance,

and management of, and all access to and use of, the Client Systems,

and sole responsibility for all access to and use of the Provider Materials

by any person by or through the Client Systems or any other means

controlled by Client or any Authorized User, including any: (i)

information, instructions, or materials provided by any of them to the

Services or DashThis; (ii) results obtained from any use of the Services

or Provider Materials; and (iii) conclusions, decisions, or actions based

on such use.

2.4. Changes. DashThis reserves the right, in its sole discretion, to make any changes

to the Services and Provider Materials that it deems necessary or useful to: (a)

maintain or enhance: (i) the quality or delivery of DashThis' services to its

customers, (ii) the competitive strength of our market for DashThis' services, or

(iii) the cost efficiency or performance of the Services; or (b) to comply with

applicable law.

2.5. Maintenance. DashThis may take the Services offline for scheduled

maintenance. DashThis may also take the Services offline for critical system

maintenance. DashThis shall use reasonable efforts to advise Client as soon as

possible about such takedown but may nonetheless proceed with the system

maintenance before advising Client.

3. COMPLIANCE

3.1. Restrictions. Client shall not, and shall not permit any other person to:

3.1.1. copy, modify, or create derivative works or improvements of the Services

or Provider Materials;

3.1.2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or

otherwise make available any Services or Provider Materials to any

person, including on or in connection with the internet or any

time-sharing, service bureau, software as a service, cloud, or other

technology or service;

3.1.3. Reverse Engineer, disassemble, decompile, decode, adapt, or otherwise

attempt to derive or gain access to the source code of the Services or

Provider Materials, in whole or in part;

3.1.4. bypass or breach any security device, or protection used by the Services

or Provider Materials or access or use the Services or Provider Materials

other than by an Authorized User through the use of their own then-valid

Access Credentials;

3.1.5. input, upload, transmit, or otherwise provide to or through the Services

or Provider Systems any information or materials that are unlawful or

injurious, or contain, transmit, or activate any Harmful Code;

3.1.6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise

impede or harm in any manner the Services, Provider Systems, or

DashThis’ provision of services to any third party, in whole or in part;

3.1.7. remove, delete, alter, or obscure any trademarks, Documentation,

warranties, or disclaimers, or any copyright, trademark, patent, or other

intellectual property or proprietary rights notices from any Services or

Provider Materials, including any copy thereof;

3.1.8. access or use the Services or Provider Materials in any manner or for

any purpose that infringes, misappropriates, or otherwise violates any IP

Right or other right of any third party, or that violates any applicable law;

3.1.9. access or use the Services or Provider Materials for purposes of

competitive analysis of the Services or Provider Materials, the

development, provision, or use of a competing software service or

product, or any other purpose that is to DashThis’ detriment or

commercial disadvantage; or

3.1.10. otherwise access or use the Services or Provider Materials in

contravention of applicable laws and regulations, or for unlawful

purposes.

3.2. Unauthorized Access. Client shall take reasonable steps to prevent

unauthorized access to and use of the Services, including by protecting Access

Credentials. Client shall notify DashThis promptly after confirming that an activity

prohibited by Section 3.1, including an unauthorized use of the Services or a

breach of its security occurred.

3.3. Material Breach. Client understands and agrees that any breach of the

requirements of Sections 3.1 and 3.2, including by Authorized Users, shall be

considered a material breach with respect to Section 9.8.

4. DATA SECURITY AND PRIVACY

4.1. Information Security Obligations. DashThis will employ security measures in

accordance with applicable law, and DashThis’ data privacy and security policy as

amended from time to time.

4.2. Data Breach Procedures. DashThis maintains a data breach plan in accordance

with all applicable laws and shall implement the procedures required under such

data breach plan on the occurrence of a data breach (as defined in such plan).

4.3. Client Control and Responsibility. Client has and will retain sole responsibility

for: (a) all Client Data, including its content and use; (b) all information,

instructions, and materials provided by or on behalf of Client or any Authorized

User in connection with the Services; (c) Client Systems; (d) the security and use

of Access Credentials of Client and its Authorized Users; and (e) all access to and

use of the Services and Provider Materials directly or indirectly by or through the

Client Systems or its Authorized Users' Access Credentials, with or without

Client’s knowledge or consent, including all results obtained from, and all

conclusions, decisions, and actions based on such access or use.

4.4. Access and Security. Client shall employ all physical, administrative, and

technical controls, screening, and security procedures and other safeguards

necessary to: (a) securely administer the distribution and use of all Access

Credentials and protect against any unauthorized access to, or use of, the

Services; and (b) control the content and use of Client Data, including the

uploading or other provision of Client Data for processing by the Services.

5. PRIVACY – EUROPEAN UNION

5.1. Application. This Section 5 solely applies to a Client located in the territory of the

European Union.

5.2. Through use of the Services, DashThis may have access to data that includes

personal data, within the meaning of the General Data Protection Regulation (the

“GDPR”), of Client’s employees or customers. In such event, this Section 5 shall

apply and the parties shall be bound by DashThis Data Processing Agreement.

6. CLIENT DATA 

6.1. Use of Client Data. Unless it receives Client’s prior written consent, DashThis

shall not access, process, or otherwise use the Client Data other than as

necessary to perform the Services and maintain or enhance the performance and

functionalities of the Provider Materials. DashThis shall not intentionally grant any

third-party access to Client Data, except subcontractors, investors or advisors that

are bound by reasonable confidentiality provisions.

6.2. Risk of Exposure. Client acknowledges and agrees that hosting data online

involves risks of unauthorized disclosure or exposure and that, in accessing and

using the Services, Client assumes such risks. Notwithstanding anything to the

contrary in this Agreement, DashThis offers no representation, warranty or

guarantee that the Client Data will not be exposed or disclosed through errors or

actions of third parties.

6.3. Accuracy and Suitability. DashThis shall not be responsible or liable for the

inaccuracy or incompleteness of the Client Data, nor for unlawful use of the Client

Data by Client. Moreover, Client shall be solely responsible for ensuring that the

Client Data transmitted or made available to DashThis or its Representatives,

whether or not gathered, created, processed or used in connection with the

Services, or collected from a third-party through the integrations API is suitable for

the purposes for which it is being transmitted or made available, including with

respect to applicable law and Client’s internal policies and obligations towards

third parties.

6.4. Aggregate Data. Notwithstanding anything to the contrary in this Agreement,

DashThis may (i) compile statistical information related to the performance of the

Client Materials in order to improve it and notably train any artificial intelligence

model; (ii) compile Client Data in relation to the use of the Services but only if

such information is aggregated to become Aggregate Data; and (iii) use,

reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its

sole discretion.

6.5. Integrations. The Services support integrations with various third party owned

and operated social media sites which have their own terms of service. When

authorizing any of the integrations offered with the Service, DashThis will have

access to any data made available by the integrations API. If the integration

requires a specific set of permission scopes to be authorized by the user, the API

data accessed will also be limited to these scopes. Data retrieved from certain

integrations may be cached for a short period and may be stored on DashThis

servers to improve the deliverability of data. The data obtained from integrations

will only be used in the dashboard and reports that Client and its users have

access to. The data is not used internally or any place that Client does not have

access to. DashThis does not monitor, endorse, adopt, or have any control over

any third-party web pages or content.

7. CONFIDENTIALITY

7.1. Confidential Information. In connection with this Agreement, each Party (as the

"Disclosing Party") may disclose or make available to the other Party (as the

"Receiving Party") Confidential Information, and therefore, each Party

undertakes to keep confidential the Confidential Information in accordance with

the terms hereof.

7.2. Definition. For the purpose of this Agreement, “Confidential Information” shall

mean any information of the Disclosing Party that is not available to the public and

that, if disclosed, would likely result in harm to the Disclosing Party or would likely

give the person to whom it is disclosed an advantage, whether such information is

disclosed or made available to the Receiving Party or its Representatives orally or

disclosed, stored or accessed in written, electronic or other form or media, before

or after the Effective Date, and whether or not marked, designated or otherwise

identified as “confidential”, as well as any information derived, summarized, or

extracted from, based on, or relating, to any of the foregoing. Confidential

Information does not include information that:

7.2.1. was rightfully known to Receiving Party without restriction on use or

disclosure before such information’s being disclosed or made available

to Receiving Party in connection with this Agreement;

7.2.2. was or becomes generally known by the public other than by Receiving

Party’s or any of its Representatives’ non-compliance with this

Agreement;

7.2.3. was or is received by Receiving Party on a non-confidential basis from a

third party that, to Receiving Party’s knowledge, was not or is not, at the

time of such receipt, under any obligation to maintain its confidentiality; or

7.2.4. was or is independently developed by Receiving Party without reference

to or use of any Confidential Information.

7.3. Protection of Confidential Information. As a condition to being provided with

any disclosure of or access to Confidential Information, Receiving Party shall:

7.3.1. not access or use Confidential Information other than as necessary to

exercise its rights or perform its obligations under and in accordance

with this Agreement. Without limiting the foregoing, the Receiving Party

will not use or modify any Confidential Information in order to create or

conceive any other product, technology, or information. The Receiving

Party will not use any Confidential Information to compete against the

Disclosing Party or in any manner which might be detrimental to the

Disclosing Party, and will not allow any third party to do any of the

foregoing;

7.3.2. except as may be permitted under the terms and conditions of

Section 7.5, not disclose or permit access to Confidential Information

other than to its Representatives who: (i) need to know such Confidential

Information for purposes of Receiving Party’s exercise of its rights or

performance of its obligations under and in accordance with this

Agreement; (ii) have been informed of the confidential nature of the

Confidential Information and Receiving Party’s obligations under this

Section 7; and (iii) are bound by confidentiality and restricted use

obligations at least as protective of the Confidential Information as the

terms set forth in this Section 7;

7.3.3. safeguard the Confidential Information from unauthorized use, access,

or disclosure using at least the degree of care it uses to protect its

similarly sensitive information and, in no event, less than a reasonable

degree of care; and

7.3.4. ensure its Representatives’ compliance with, and be responsible and

liable for any of its Representatives’ non-compliance with, the terms of

this Section 7.

7.4. Liability. The Receiving Party shall be directly responsible towards the Disclosing

Party for any loss or damage caused by the breach of any obligation set forth

herein by the Receiving Party or its Representatives. The Receiving Party

recognizes that its neglect in respecting this Agreement could cause serious and

irreparable harm to the Disclosing Party. Consequently, the Receiving Party

agrees that a claim in pecuniary damages may not constitute a suitable recourse

in case of violation of this Agreement, that the Disclosing Party has a right to

injunctive relief or specific performance in any case of violation and that such

recourses are not exclusive and add to any other recourse available to the

Disclosing Party.

7.5. Compelled Disclosures. If Receiving Party or any of its Representatives is

compelled by applicable law to disclose any Confidential Information, then, to the

extent permitted by applicable law, Receiving Party shall: (a) promptly, and before

such disclosure, notify Disclosing Party in writing of such requirement so that

Disclosing Party can seek an injunction, protective order, or other remedy or

waive its rights under Section 7.3; and (b) provide reasonable assistance to

Disclosing Party, at Disclosing Party’s sole cost and expense, in opposing such

disclosure or seeking an injunction, protective order, or other limitations on

disclosure. If the Disclosing Party waives compliance or, after providing the notice

and assistance required under this Section 7.5, Receiving Party remains required

by law to disclose any Confidential Information, Receiving Party shall disclose

only that portion of the Confidential Information that Receiving Party is legally

required to disclose.

7.6. Trade Secrets. Notwithstanding any other provision of this Agreement, Receiving

Party’s obligations under this Section 7 with respect to any Confidential

Information that constitutes a trade secret under any applicable law will continue

until such time, if ever, as such Confidential Information ceases to qualify for trade

secret protection under one or more such applicable laws other than as a result of

any act or omission of Receiving Party or any of its Representatives.

7.7. Return of the Confidential Information. The Receiving Party undertakes to

return to the Disclosing Party or to destroy upon request and at the sole discretion

of the Disclosing Party, within ten (10) days of a written notice to that effect, all

documents or other forms of support representing or constituting the Confidential

Information received and collected under this Agreement, and this without saving

any copies of said Confidential Information. The Receiving Party also undertakes

to join with such returned Confidential Information a sworn statement confirming

that said Confidential Information constitutes all the information received and

collected under the present Agreement.

8. INTELLECTUAL PROPERTY

8.1. Intellectual Property Rights. DashThis shall retain all interest in and to the

Provider Materials, including any modifications, improvements, upgrades,

derivative works, and all other IP Rights in connection thereof, including DashThis’

name, logos and trademarks reproduced through the Provider Materials, or any

Feedback provided by the Client. Nothing in this Agreement grants any right, title,

or interest in or to (including any licence under) any IP Rights in or relating to, the

Services or Provider Materials, whether expressly, by implication, or otherwise.

8.2. Feedback. Notwithstanding anything to the contrary in this Agreement, DashThis

has not agreed to and does not agree to treat as confidential any part of the

Feedback and nothing in this Agreement or in the Parties’ dealings arising out of

or related to this Agreement will restrict DashThis’ right to use, profit from,

disclose, publish, keep secret or otherwise exploit the Feedback, without

compensating or crediting Client. “Feedback” refers to any suggestion or idea for

improving or otherwise modifying the Provider Materials.

8.3. Client Data. Neither DashThis nor any third party has or will have and will not

have, acquire, or claim any right, title, or interest in or to any Client Data. Client

hereby grants to DashThis: (i) a non-exclusive, royalty-free, worldwide right and

license to reproduce, distribute, and otherwise use and display the Client Data

and perform all acts with respect to the Client Data as may be necessary for

DashThis to provide the Services (to the extent applicable) to Client; and (ii) a

non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and licence to

reproduce, distribute, modify, and otherwise use and display the Client Data

incorporated within the Aggregated Data.

8.4. Client’s Trademarks. Client hereby grants DashThis a non-exclusive,

non-transferable, worldwide, royalty-free, and fully paid-up right and licence, but

no obligation, to use, reproduce, distribute, display, and exhibit Client’s

trademarks, logos and corporate name (collectively, the “Client’s Trademarks”) in

connection with the Services (to the extent applicable). DashThis shall comply

with all reasonable brand and trademark guidelines and requirements of which it

has notice relating to the use of Client’s Trademarks as the Client, from time to

time, may institute in its reasonable judgment; provided however that no

inadvertent failure to comply with such guidelines and requirements shall be

deemed a material breach of this Agreement.

9. BILLING CYCLE AND TERMINATION

9.1. Billing Cycle. The Services are provided on a subscription basis, for periods of

time specified in the Order Form (the “Billing Cycle”). Clients will be charged

periodically at the start of each Billing Cycle, accordingly to the Services

requested.

9.2. Renewal. This Agreement will be renewed automatically at the end of each Billing

Cycle, unless previously terminated by either party. DashThis may amend the

price for its Services between each Billing Cycle. Client shall pay the then-current

standard fees that DashThis charges for the Services.

9.3. Payment. Client shall pay the Service fees by credit card or other method of

payment made available by DashThis from time to time. All payments will be

charged in United States Dollars. Any Client residing in Canada may request that

the Services be charged in Canadian Dollars.

9.4. Free Trial. DashThis may, at its sole discretion, offer a free trial for the Services

for a limited time (the “Free Trial”). Upon the expiration of the Free Trial, Client

shall be required to enter its billing information, or its access to the Services shall

be terminated. DashThis reserves the right to determine if Client is eligible for a

Free Trial and to discontinue any Free Trial without notice at its sole discretion.

9.5. No Refunds. Client understands and accepts that DashThis does not offer any

refunds on the subscription to the Services.

9.6. Taxes. All Fees and other amounts payable by the Client under this Agreement

are exclusive of sales taxes and similar assessments.

9.7. Payment Failure. In the event that the automatic payment fails to occur, this

Agreement may be terminated and Client’s access to Provider Materials may be

removed.

9.8. Late Payment. If Client fails to make any payment when due, then, in addition to

all other remedies that may be available to DashThis:

9.8.1. DashThis may charge interest on the outstanding amounts at the rate of

1% per month, which is equivalent to 12,68% per year; and

9.8.2. Client shall reimburse DashThis for all reasonable costs incurred by

DashThis in collecting any late payment of amounts due or related

interest, including legal fees, disbursements, charges, and collection

agency fees.

9.9. Termination for Material Breach. Each Party may terminate this Agreement with

immediate effect by delivering notice of the termination to the other Party, if:

9.9.1. the other Party fails to perform, has made, or makes any inaccuracy in,

or otherwise materially breaches, any of its material obligations,

undertakings, or representations under this Agreement; and

9.9.2. the failure, inaccuracy, or material breach continues, as determined by

the injured Party, acting reasonably, for a period of thirty (30) business

days after the injured Party delivers notice to the breaching Party

reasonably detailing the breach.

9.10. No Termination for Convenience. Client acknowledges and agrees that it

cannot unilaterally terminate the Agreement except for the reasons specifically

provided for in this Section 9. Client hereby irrevocably waives the application of

Article 2125 of the Civil Code of Québec to this Agreement.

9.11. Surviving Terms. The provisions set forth in the following Sections, and any

other right, obligation, or provision under this Agreement that, by its nature, should

survive termination or expiration of this Agreement, will survive any expiration or

termination of this Agreement: Section 1 (Definitions), Section 7 (Confidentiality),

Section 8 (Intellectual Property), this Section 9.11, Section 10 (Representations

and Warranties), Section 11 (Indemnification), Section 12 (Limitations of Liability),

and Section 13 (Miscellaneous).

10. REPRESENTATIONS AND WARRANTIES

10.1. Mutual Warranties. Each Party warrants to the other Party that:

10.1.1. it is incorporated and validly existing as a corporation under the laws of

the jurisdiction of its incorporation, where applicable;

10.1.2. it has the power and capacity to enter into and perform its obligations

and grant the rights, licences, and authorizations it grants and is required

to grant under this Agreement;

10.1.3. the execution of this Agreement by its representative whose signature is

set forth in the Order Form has been duly authorized by all necessary

corporate action of such Party; and

10.1.4. when executed and delivered by the Parties, this Agreement will

constitute the legal, valid, and binding obligation of such Party,

enforceable against such Party in accordance with its terms.

10.2. Client’s Additional Representations and Warranties. Client represents and

warrants to DashThis that: (i) it shall at all times comply with applicable laws and

this Agreement (including any applicable privacy or data protection laws); (ii) the

Client Data does not infringe or misappropriate any rights of any third party; and

(iii) it has obtained all necessary rights and consents necessary to grant DashThis

the rights granted hereunder.

10.3. Warranty Disclaimer. Except for the express limited warranties set forth in this

Section 10, the Services, Provider Materials, and other products, information,

materials, and services provided by DashThis are provided “as is”. DashThis

hereby disclaims all conditions and warranties, whether express, implied,

statutory, or other (including all conditions and warranties arising from course of

dealing, usage, or trade practice), and specifically disclaims all implied conditions

and warranties of merchantability, fitness for a particular purpose, title, and

non-infringement. DashThis makes warranty of any kind that the Services or the

Provider Materials, or any other DashThis or third-party goods, services,

technologies, or materials, or any products or results of the use of any of them,

will meet Client’s or other persons' requirements, operate without interruption,

achieve any intended result, will output data resulting from the processing of the

Client input data with the Services that is without error or omission, be compatible,

or work with any other goods, services, technologies, or materials except if and to

the extent expressly set forth in the Documentation, or be secure, accurate,

complete, free of Harmful Code, or error-free.

11. INDEMNIFICATION

11.1. Each Party (an “Indemnifying Party”) shall be liable and shall indemnify and hold

harmless the other Party (the “Indemnified Party”) against any and all Liabilities

imposed upon such Indemnified Party by any third party in the event and to the

extent such Liabilities result from the breach of its obligations under the terms of

the Agreement or the law, unless:

11.1.1. to the extent the Liabilities are caused by the fault of the Indemnified

Party or any one of the persons or property which is under its authority

or custody; or

11.1.2. to the extent the Liabilities are due to or arise from any material breach

by the Indemnified Party of any of the provisions of the Agreement or of

any legal obligations.

11.2. To receive the benefit of indemnification, the Indemnified Party must:

11.2.1. promptly notify the Indemnifying Party of a claim or suit; provided, that 

failure to give such notice shall not relieve the Indemnifying Party of its

indemnification obligations except where, and solely to the extent that,

such failure actually and materially prejudices the rights of the

Indemnifying Party;

                    11.2.2. provide reasonable cooperation to the Indemnifying Party (at Indemnifying Party’s cost and expense); and

11.2.3. tender to the Indemnifying Party (and its insurer) full authority to defend

or settle the claim or suit; provided that no settlement requiring any

admission by the Indemnified Party or that imposes any obligation on the

Indemnified Party shall be made without the Indemnified Party’s prior

consent.

11.3. The Indemnifying Party has no obligation to indemnify any Indemnified Party in

connection with any settlement made without the Indemnifying Party’s prior written

consent. The Indemnified Party has the right to participate at its own expense in

the claim or suit and in selecting counsel therefor.

12. LIMITATIONS OF LIABILITY

12.1. Exclusion of Damages. In no event shall DashThis be liable in connection with

this Agreement for any damages other than those that were foreseen or

foreseeable at the time the obligation was contracted and that are an immediate

and direct consequence of non-performance by DashThis. Without limiting the

foregoing, the following damages are expressly excluded: (a) increased costs,

diminution in value, or lost business, production, revenues, or profits, (b) loss of

goodwill or reputation, (c) use, inability to use, loss, interruption, delay, or recovery

of the Services or Provider Materials (d) loss, damage, corruption, or recovery of

data, or breach of data or system security, (e) cost of replacement goods or

services, (f) error or omission which may occur in output data resulting from the

processing of the Client input data with the Services, or (g) consequential,

incidental, indirect, special, aggravated, punitive, or exemplary damages, in each

case regardless of whether such persons were advised of the possibility of such

losses or damages or such losses or damages were otherwise foreseeable, and

notwithstanding the failure of any agreed or other remedy of its essential purpose.

12.2. Cap on Monetary Liability. In no event will the aggregate liability of DashThis

arising out of this Agreement, exceed the total of the amounts paid to DashThis

under this Agreement in the 12-month period preceding the event giving rise to

the claim.

13. MISCELLANEOUS

13.1. Relationship Between the Parties. The relationship between the Parties is that

of independent contractors. Nothing in this Agreement shall be construed as

creating any agency, partnership, joint venture or other form of joint enterprise,

employment, or fiduciary relationship between the Parties, and neither Party shall

have authority to contract for or bind the other Party in any manner whatsoever.

13.2. Interpretation.

13.2.1. For purposes of this Agreement: (a) the words "include," "includes," and

"including" are deemed to be followed by the words "without limitation";

(b) the word "or" is not exclusive; (c) the words "herein," "hereof,"

"hereby," "hereto," and "hereunder" refer to this Agreement as a whole;

(d) words denoting the singular have a comparable meaning when used

in the plural, and vice versa; and (e) words denoting any gender include

all genders.

13.2.2. Unless the context otherwise requires, references in this Agreement: (a)

to sections, exhibits, schedules, attachments, and appendices mean the

sections of, and exhibits, schedules, attachments, and appendices to,

this Agreement; (b) to an agreement, instrument, or other document

means such agreement, instrument, or other document as amended,

supplemented, and modified from time to time to the extent permitted by

the provisions thereof; and (c) to a statute means such statute as

amended from time to time and includes any successor legislation

thereto and any regulations promulgated thereunder.

13.2.3. The Parties intend this Agreement to be construed without regard to any

presumption or rule requiring construction or interpretation against the

Party drafting an instrument or causing any instrument to be drafted.

13.2.4. The exhibits, schedules, attachments, and appendices referred to herein

are an integral part of this Agreement to the same extent as if they were

set forth verbatim herein. Unless other stated, all dollar amounts referred

to in this Agreement are stated in US dollars.

13.2.5. The headings in this Agreement are for reference only and do not affect

the interpretation of this Agreement.

13.3. Entire Agreement. This Agreement constitutes the sole and exclusive agreement

of the Parties with respect to the subject matter hereof and supersedes all prior

understandings, agreements, conditions, representations and warranties, both

written and oral, with respect to such subject matter.

13.4. Assignment. Client shall not assign or otherwise transfer any of its rights, or

delegate or otherwise transfer any of its obligations or performance, under this

Agreement without DashThis’ prior written consent. Any purported assignment,

delegation, or transfer in violation of this section is void. This Agreement is binding

on and ensures to the benefit of the Parties and their respective permitted

successors and assigns.

13.5. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the

Parties and their respective permitted successors and permitted assigns, and

nothing herein, express or implied, is intended to or shall confer on any other

Person any legal or equitable right, benefit, or remedy of any nature whatsoever

under or by reason of this Agreement.

13.6. Waiver. No waiver by any Party of any of the provisions hereof shall be effective

unless explicitly set forth in writing and signed by the Party so waiving. Except as

otherwise set forth in this Agreement, no failure to exercise, or delay in exercising,

any rights, remedy, power, or privilege arising from this Agreement shall operate

or be construed as a waiver thereof; nor shall any single or partial exercise of any

right, remedy, power, or privilege hereunder preclude any other or further exercise

thereof or the exercise of any other right, remedy, power, or privilege.

13.7. Severability. If any term or provision of this Agreement is invalid, illegal, or

unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall

not affect any other term or provision of this Agreement or invalidate or render

unenforceable such term or provision in any other jurisdiction.

13.8. Governing Law. This Agreement and all related documents, and all matters

arising out of or relating to this Agreement, are governed by, and construed in

accordance with, the laws of the province of Quebec and Canada's federal laws

applicable therein, without regard to their conflict of law rules.

13.9. Language. The parties have specifically required that this Agreement and all

related documents, including notices and other communications, be drafted in the

English language. Les parties ont spécifiquement exigé que la présente

convention ainsi que tous les documents qui s’y rattachent, incluant les avis et les

autres communications, soient rédigés en anglais.

 

SCHEDULE A

SUPPORT SERVICES

Support Request. Client may send any request for assistance via the support form on the

platform or via email at [email protected].

Availability. DashThis support team is available Monday to Friday (except public

holidays), from 9:00am to 5:00pm EST.

Information to be provided. Where DashThis requests information (logs, procedure for

reproducing the problem or any other relevant data), Client shall use its best efforts to

provide such information.