Terms of Service
Gata Labs Inc., operating as OneLocal, a Canadian corporation with offices at 325 Front St West, 4th Floor, Toronto, Ontario, Canada, M5V 2Y1 (“OneLocal“, “we“, “us” or “our“) provides a marketing growth platform (“Merchant Dashboard”) sets forth the services being purchased by the Merchant who signed the Order Form (“you”, “your” or “Merchant”), the costs for such services, and any other relevant details.
These Terms of Service (the “Terms“) are incorporated by reference into and made a part of any Order Form and govern the relationship between you and OneLocal. All Order Forms are subject to acceptance by OneLocal, in its sole discretion. The Order Form, the Terms, and any documents or links referenced in such documents are together referred to as the “Agreement”.
If you are accepting these Terms on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to these Terms, (ii) you have read and understand these Terms, and (iii) you agree, on behalf of the Merchant, to these Terms.
“Agreement” means these Terms, including its schedules and the Order Form to which these Terms are attached or referenced.
“Confidential Information” means (i) any and all information disclosed by one party to the other which is marked “confidential” or “proprietary”, or similar designation or which the recipient knows or has reason to know is regarded by the disclosing party as confidential, including information shared verbally and (ii) any “Personal Information”, as defined by applicable privacy and personal information protection laws, disclosed by End Users to the Merchant. “Confidential Information” does not include any information that the receiving party can demonstrate: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such a disclosure; (d) is independently developed by the receiving party; (e) has been approved for release by the disclosing party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
“Documentation” means any manuals, instructions or other documents or materials that OneLocal provides or makes available to Merchant in any form or medium and which describe the functionality, components, features or requirements of the OneLocal Services , including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Employee” means an individual or contractor who works for or provides services for the Merchant.
“End User” means an individual who the Merchant contacts or connects with using the OneLocal Service, either via web or mobile (through SMS email or another mean), to communicate with the Merchant in respect of the Merchant’s Services.
“Fees” means the fees payable by Merchant to OneLocal for the right to receive access to and use the OneLocal Service and Support Services including monthly subscription fees as outlined in the Order Form.
“Initial Term” means the length of time that the Merchant has subscribed to the OneLocal Service for, as outlined in the Order Form.
“Locations” are the number of regions or physical locations outlined in the Order Form for which the Merchant has access to use the OneLocal Service, which may be added to/deleted from at the discretion of the Merchant.
”Merchant Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Merchant or an End User by or through the OneLocal Service.
“Merchant Services” means the service or product provided by Merchant.
“OneLocal Platform” means the proprietary technology used by OneLocal (ie. servers, databases etc.) that collects Merchant Data from the Merchant, End Users and Employees and which also enables communication between devices as part of the OneLocal Service and facilitates provision and receipt of the OneLocal Service between the Merchant and the End User.
“OneLocal Service” means the provision of access to the OneLocal Platform (as modified and/or developed from time to time) to allow the Merchant to communicate, connect and transact with End Users. The End Users can communicate with the Merchant through web, mobile or SMS that are all part of the OneLocal product offering & services. This includes the provision and solicitation of feedback for the Merchant, connection for purposes of facilitating referrals & introductions and general contact for purposes of marketing. Capabilities of the OneLocal Service are described in more detail on the Website.
“Offering” has the meaning provided in Section 2.4.
“Order Form” means the order form to this Agreement.
“Renewal Term” has the meaning provided in Section 8.1.
”Resultant Data” means information, data and other content that is derived by or through the OneLocal Service from processing Merchant Data and is sufficiently different from such Merchant Data that such Merchant Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
“Support Services” means any services and features provided by OneLocal in support of or supplemental to the OneLocal Service including online training, analytics, support as purchased by Merchant in the Order Form.
“Technology” has the meaning provided in Section 2.6.
“Term” has the meaning providing in Section 8.1.
“Website” means onelocal.com, gatalabs.com, quick-feedback.co, my-referral.co, or such other URL as OneLocal shall provide for the OneLocal Service from time to time.
2. SERVICES AND RESPONSIBILITIES
2.1 Provision of OneLocal Service. Subject to and conditional on compliance with the terms and conditions of this Agreement by Merchant and its End Users, during the Term, OneLocal shall use commercially reasonable efforts to provide to Merchant and its End Users the OneLocal Service described in the Order Form and this Agreement.
2.2 OneLocal Platform Access. Subject to the terms and conditions of this Agreement, OneLocal grants to the Merchant and its Employees during the Term a non-exclusive, non-transferable right to access to use the OneLocal Platform to access and use the OneLocal Service. The license granted herein is granted solely to the Merchant and not, by implication or otherwise, to any parent, subsidiary, or affiliate of the Merchant.
2.3 Account Access. The Merchant shall be provided with login details enabling direct access to its database of Merchant Data, analytics and reports based on the same. The Merchant shall have the ability to edit and add to content which is in its database and account. The Merchant is responsible for all activities that occur in Employee accounts and for maintaining the security and confidentiality of any login details to such accounts.
2.4 Merchant Responsibilities. The Merchant understands that any payments, purchases, charges, promotions, rewards, credits, loyalty points, offers or other offerings (“Offerings“) that they offer to their End Users through the OneLocal Service or OneLocal Platform are solely the Merchant’s responsibility. OneLocal cannot, will not and is not liable in any circumstance, for any change, misrepresentation or termination of the Offerings. The Merchant understands and acknowledges that all payment transactions will be processed through a third-party payment processor, as described below. Any dispute between the End User and the Merchant related to an Offering is the sole liability of the Merchant. The Merchant understands that the Locations which they have subscribed to for the OneLocal Service cannot be transferred. Merchant understands and agrees that some of the OneLocal Services are intended to allow Merchant to send transactional and/or informational messages to Merchant’s own current End Users only. Should Merchant elect to use the Services to send any messages that constitute advertising or telemarketing, or to communicate with anyone other than Merchant’s current End Users, Merchant will only do so in compliance with all local, provincial, state, national and international laws, regulations and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions.
2.5 OneLocal Service Responsibilities. OneLocal shall use commercially reasonable efforts to (i) maintain the security and integrity of the OneLocal Service and the Merchant Data; and (ii) make the OneLocal Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by a force majeure event as defined in section 10.8.
2.6 Facilitation Responsibilities. In order to access the OneLocal Service, the Merchant understands that they must provide their Employees with hardware, software, telephone, internet and mobile internet services (“Technology“). The Merchant understands that all costs and functions relating to the Technology is solely their responsibility and OneLocal is not and will not be deemed responsible, whether financially or otherwise, for the performance, use, theft, malfunction or loss of the Technology by the Merchant or their Employees.
2.7 Use Restrictions. Merchant shall not (and shall not allow any person to):
a) copy, modify, translate, reverse engineer, decompile, disassemble, decode, adapt or create derivative works based on the OneLocal Service or Website or access the OneLocal Service or Website in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions of the OneLocal Service;
b) circumvent any user limits or other timing or use restrictions that are built into the OneLocal Service or attempt to gain unauthorized access to parts of the OneLocal Service or OneLocal Platform which are not made available to Merchant by OneLocal;
c) input or access data from the OneLocal Service while navigating a vehicle which is in motion or other dangerous or illegal use;
d) resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the OneLocal Service (or any of its components) available to any third party without OneLocal’s prior written consent;
e) use the OneLocal Service to (1) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (2) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights;
f) otherwise access and use the OneLocal Service beyond the scope of Section 2.2; or
g) attempt to deliberately damage or undermine the legitimate operation of any third-party payment processing services used in connection with the OneLocal Service, which could be a violation of criminal or civil laws. Should such an attempt be made, OneLocal reserves the right to seek remedies and damages to the fullest extent permitted by law.
2.8 Google, Facebook & Other Third Party Profiles. The Merchant understands that use of the OneLocal Service to connect with Google, Facebook or other review or related websites is at their own discretion and the Merchant assumes all responsibility for abiding by each respective website’s terms and conditions. If an integration is included in the OneLocal Service, Merchant grants OneLocal the right to access Merchant’s information or CRM system directly or through a third-party service for the purposes of fulfilling OneLocal’s obligations under this Agreement, and Merchant warrants that Merchant is not restricted by law or applicable agreement from granting OneLocal such right. OneLocal will not be held liable for any consequences of false and/or inaccurate content published to an online review or ratings website through OneLocal by Merchant or its End Users. Additionally, OneLocal may make arrangements with third-party providers, or facilitate Merchant making arrangements with third-party providers, that provide products or services in connection with the OneLocal Services described in this Agreement. If Merchant uses third-party products in connection with the OneLocal Service, those products may make third-party content available to Merchant and may access Merchant’s instance of the OneLocal Service, including Merchant Data. OneLocal does not warrant or support third-party products or third-party content (whether or not these items are designated by OneLocal as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the OneLocal Service, including their modification, deletion, disclosure or collection of Merchant Data. OneLocal is not responsible in any way for Merchant Data once it is transmitted, copied or removed from the OneLocal Service.
2.9 Beta Releases and Free Access Subscriptions. OneLocal may provide Merchant with certain OneLocal Services for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta” or other early-stage OneLocal Service, integrations or features (“Beta Releases”). This Section will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Merchant’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. OneLocal may use good faith efforts in its discretion to assist Merchant with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, MERCHANT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, MERCHANT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH ONELOCAL WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT MERCHANT’S SOLE RISK. OneLocal makes no promises that future versions of a Beta Release will be released or will be available under the same commercial or other terms. OneLocal may terminate Merchant’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in OneLocal’s sole discretion, without liability.
2.11 Erroneous or Fraudulent Transactions. Merchant acknowledges and agrees that it is solely responsible for any and all losses incurred due to erroneous or fraudulent transactions. Merchant is solely responsible for the nature and quality of the products or services purchased by the End User. Merchant affirms that it is solely responsible for delivery, support, refunds, returns, reversals, duplicate transactions, discrepancies, disputes and claims in relation to the products or services. OneLocal is not responsible for and has no liability in relation to Merchant products or services purchased using the OneLocal Service.
2.12 Timing of Transactions. OneLocal does not make any representation, warranty, condition or guarantee regarding the time it will take for a transaction to be processed.
2.13 Refusal to Complete a Transaction. OneLocal, acting in its sole discretion, may refuse to complete a transaction if OneLocal believes that there is a risk, such as a potential breach of a law or regulation, associated with completing the transaction.
2.14 Prohibited Countries. Stripe Services may not be available to End Users residing in certain prohibited countries, or countries where Stripe is not supported.
2.15 Unlawful Activities. Merchant agrees not to engage in any activity whatsoever, which is unlawful, fraudulent, deceptive or abusive in relation to Stripe Services or any other third-party payment processor.
2.16 Change of Third-Party Payment Processor. From time to time, OneLocal may change the third-party payment processor it uses to support the OneLocal Service, or OneLocal may elect to itself perform some or all of the services that were previously provided by the third-party payment processor, if so, Merchant may be required to agree to additional terms imposed by OneLocal.
2.17 Stripe Services. OneLocal is not responsible or liable to Merchant for any indirect, punitive, incidental, special consequential, or exemplary damages resulting from the use or inability to use the Stripe Services or for the unavailability of the Stripe Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to Stripe Services. OneLocal is not responsible or liable for any damages or losses arising from or relating to hacking, tampering or any other unauthorized access or use of the Stripe Services.
3. PROPRIETARY RIGHTS
3.1 Ownership and Proprietary Rights. Except for the rights and licenses granted in this Agreement, OneLocal owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights) in the OneLocal Service, (including the underlying software and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof) and the Resultant Data. Merchant acknowledges that OneLocal shall have the sole right to maintain, enhance or otherwise modify the OneLocal Service.
3.2 Branding. The OneLocal Service shall be branded according to the requirements of OneLocal. Merchant may use OneLocal’s branding solely for purposes of marketing and providing the OneLocal Service; provided, however, that Merchant shall comply with any trademark use guidelines communicated by OneLocal to the Merchant. The Merchant shall promptly inform OneLocal in writing of any known violation of OneLocal’s branding. Any use of OneLocal’s branding shall inure to the benefit of OneLocal. Merchant agrees it will not use, register or otherwise appropriate any name, mark or logo which is similar to or may be confused with any of OneLocal’s branding apart from agreed branding that incorporates the OneLocal name.
3.3 Reservation of Rights. Except as set forth in Section 2, OneLocal reserves all rights and grants Merchant no licenses of any kind hereunder, whether by implication, estoppel, or otherwise.
3.4 Publicity. All press releases and other public announcements under this Agreement shall be approved by both parties in writing prior to release, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, OneLocal may identify the Merchant as a customer of OneLocal Services through use of Merchants logo and/or written description on the OneLocal website and within its sales and marketing materials.
4. PAYMENT TERMS AND TAXES
4.1 Payment Terms. All currency and payments are calculated in the currency as indicated on the Order Form. In consideration of the rights granted herein, Merchant shall pay OneLocal the fees indicated in the Order Form.
4.2 Payment Agreement. The Merchant agrees to pay the Fees as outlined on the Order Form. Merchant authorizes OneLocal to charge the Merchant for all outstanding Fees, taxes and charges and outstanding account balances due under this Agreement, and this constitutes OneLocal’s good and sufficient authority for so doing. Merchant is solely responsible for all charges incurred under Merchant’s account by Merchant or Locations.
4.3 Monthly License Fee. During the Initial Term the fees payable per calendar month are outlined in the Order Form.
4.4 Administrative Costs. To the extent that the Merchant does not fulfill its obligations under sections 4.1-4.3, resulting in non-payment or returned or rejected payments, OneLocal may bill the Merchant a re-activation, re-billing or other related fees to reinstate the OneLocal Service. All administrative charges charged to the Merchant must be indicated on the Order Form.
4.5 Late Charges. Payments shall be made to OneLocal in full without set-off, counterclaim or deduction. Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month.
4.6 No Deductions or Set-Offs. All amounts payable to OneLocal under this Agreement shall be paid by Merchant to OneLocal in full without any set-off, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
5. CONFIDENTIALITY & PRIVACY
5.1 Obligation. Neither party shall use any Confidential Information of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, service partners, customers, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it at least as restrictive as those in this Section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information. This Article shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup and to Confidential Information or copies thereof which must be stored by the receiving party, its affiliates or its advisors according to provisions of mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein.
5.2 Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
5.3 Compliance with Privacy Laws. Merchant shall comply with all privacy and personal information protection laws that are applicable to End User Personal Information if such information is provided to the Merchant. The Merchant acknowledges and agrees that any breach by the Merchant of its obligation to comply with all privacy and personal information protection laws would result in significant damage to OneLocal that would not be completely compensable monetarily, and hereby agrees that OneLocal shall be entitled to injunctive relief in a court of appropriate jurisdiction in the event of the violation or threatened violation by the Merchant of any privacy and/or personal information protection laws.
5.5 Notification of Security Breach. The Merchant shall notify OneLocal as soon as possible of any suspected or actual breach of Merchant’s security of which Merchant becomes aware that may compromise the safeguarding of Confidential Information and/or the Merchant Data, including, without limitation, any unauthorised access to or entry into the Merchant’s premises, computer systems or databases or security incidents involving Employees.
5.6 Merchant Data
a) Rights in Merchant Data. As between the parties, Merchant retains all right, title and interest (including any intellectual property rights) in and to the Merchant Data. Merchant hereby grants OneLocal a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the Merchant Data solely to the extent necessary to provide the OneLocal Service and related services to Merchant and as otherwise provided herein.
b) Resultant Data. Merchant agrees that OneLocal will have the right to generate Resultant Data. The parties agree that Resultant Data is OneLocal intellectual property, which OneLocal may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve OneLocal’s products and services and to create and distribute reports and other materials). OneLocal will not distribute Resultant Data in a manner that personally identifies Merchant or its End Users, or that would otherwise violate applicable laws, such as HIPAA. If Merchant and OneLocal have entered into a BAA, OneLocal will use the Resultant Data only in conformity with the terms of such agreement.
c) Monitoring. Merchant understands and agrees that OneLocal, and any third-party platform(s) Merchant uses or accesses in connection with the OneLocal Service, may monitor and analyze Merchant Data submitted by Merchant and its End Users (including but not limited to reviews, surveys, messages, chats, etc.) to improve the OneLocal Service or third-party platform; to improve Merchant’s experience using the OneLocal Services or third-party platform; to customize and communicate informational or product offerings and promotions to Merchant; to ensure compliance with the acceptable use policy (including taking corrective action permitted therein); and/or to make the OneLocal Services, or third-party platform more helpful or useful to Merchant and other users.
d) Security. OneLocal agrees to maintain physical, technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. If Merchant is a Covered Entity or Business Associate, as defined in HIPAA, OneLocal and Merchant agree to the terms of OneLocal’s Standard Business Associate Agreement BAA . OneLocal takes no responsibility and assumes no liability for any Merchant Data other than its express security obligations in this Section.
e) Storage. OneLocal does not provide an archiving service. During the Initial Term, Merchant acknowledges that OneLocal may delete Merchant Data no longer in active use. Except for requirements that are included in any BAA entered into between OneLocal and Merchant, OneLocal expressly disclaims all other obligations with respect to storage.
6. WARRANTIES AND DISCLAIMERS
6.1 Mutual Warranties. Each party represents and warrants that: (a) it has all requisite power, financial capacity and authority to execute, deliver and perform its obligations under this Agreement; and (b) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of that party.
6.2 OneLocal Warranties. OneLocal represents and warrants that during the Term (i) it will provide the OneLocal Service and Support Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) the OneLocal Service shall perform materially in accordance with the Documentation. For greater certainty, OneLocal does not warrant that use of the OneLocal Service will be error-free or uninterrupted.
6.3 Merchant Warranties. The Merchant represents and warrants to OneLocal that: (i) it has licenses, approvals and authority necessary to provide the Merchant services to End Users; (ii) Merchant services meet all relevant safety and inspection standards and Merchant maintains in place valid and appropriate insurance coverage; (iii) any information or content submitted to OneLocal or through the OneLocal Platform does not infringe the intellectual property or personal rights of any third party; and (iv) Merchant will comply with these Terms of Service, and, if applicable, the OneLocal Restricted Business Policy; (v) Merchant will comply with all applicable laws and be responsible for the provision of the Merchant services to End Users In particular, and without limitation, Merchant warrants and represents that it will not use the Service in a manner that would violate any obligation with respect to CASL, CANSPAM, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999 and any other applicable federal, state, or international law and amendments thereto.
6.4 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE ONELOCAL PLATFORM, ONELOCAL SERVICE AND SUPPORT SERVICE ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION AND/OR WARRANTY OF ANY KIND AND ONELOCAL DISCLAIMS ANY AND ALL STATUTORY REPRESENTATIONS AND/OR WARRANTIES AGAINST NON-INFRINGEMENT AND ANY AND ALL IMPLIED REPRESENTATIONS AND/OR WARRANTIES OF MERCHANTABILITY, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. ONELOCAL DOES NOT WARRANT THAT USE OF THE ONELOCAL PLATFORM OR ONELOCAL SERVICE WILL BE ERROR-FREE, UNINTERRUPTED OR WILL MEET MERCHANTS OR END USERS EXPECTATIONS.
7.1 Indemnification by OneLocal. OneLocal shall defend and indemnify the Merchant against any loss, damage or costs (including reasonable attorneys’ fees) awarded to a third party against the Merchant by a court of competent jurisdiction in any claims, demands, suits, or proceedings made or brought against the Merchant for third party claims alleging that the use of the OneLocal Service as contemplated hereunder infringes the Canadian or US patent or copyright of a third party (“IP Claims”), subject to the condition that Merchant (a) promptly gives written notice of any IP Claim to OneLocal; (b) gives OneLocal sole control of the defense and settlement of each IP Claim; and (c) provides to OneLocal, at OneLocal’s cost, all reasonable assistance in respect to each IP Claim.
7.2 Mitigation. If (a) OneLocal becomes aware of an actual or potential IP Claim, or (b) the Merchant provides OneLocal with notice of an actual or potential IP Claim, OneLocal may (or in the case of an injunction against Merchant, shall), at OneLocal’s sole option and determination: (I) procure for the Merchant the right to continue to use the OneLocal Service; or (II) replace or modify the OneLocal Service (or the affected components) with equivalent or better functionality so that the Merchant’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the OneLocal Service and refund to the Merchant any pre-paid Fees for any periods after the termination of the OneLocal Service, less any outstanding moneys owed by the Merchant to OneLocal.
7.3 Exclusions. The indemnity in Section 7.1 does not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the OneLocal Service furnished by OneLocal with other products, software or services not provided by OneLocal; (2) any IP Claim related to any Merchant Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the OneLocal Service outside the scope of the rights granted in this Agreement.
7.4 Merchant Indemnity. The Merchant shall indemnify, defend, and hold OneLocal (including its officers, directors, agents, and employees) harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, and/or judgments (collectively “Claims”), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from OneLocal by reason of any Claim arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property caused by any act, error or omission, or misconduct of the Merchant or its Employees; (b) violation of any law or regulation by the Merchant (including, without limitation, any privacy or personal information protection law or regulation); or (c) breach of any warranties or other terms in these Terms of Service or Restricted Business Policy by the Merchant; and (d) provision of Merchant’s Services or Offering. OneLocal shall notify the Merchant promptly of any Claims, permit the Merchant to control the defense and settlement of such Claims (provided that OneLocal may participate with counsel of its own choosing, at its own expense), and assist the Merchant, at Merchant’s expense, in defending or settling such Claims.
8. TERM AND TERMINATION
8.1 Term. Unless terminated earlier pursuant to Section 8.2 below, this Agreement shall commence on the Effective Date and shall remain in force for the Initial Term. Thereafter, the term of the Agreement will be automatically renewed on the anniversary of the Effective Date for additional renewal terms equal to the duration of the Initial Term specified in the Order Form (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term“), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term hereof. OneLocal reserves the right to change fees for the OneLocal Service upon thirty (30) days of written notice before each Renewal Term. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
8.2 Suspension of Service. OneLocal may suspend Merchant’s access to the OneLocal Service if: (i) Merchant’s account is overdue or (ii) Merchant has exceeded its Scope of Use limits. OneLocal may also suspend Merchant’s access to the OneLocal Service, remove Merchant Data or disable third-party products if it determines that: (a) Merchant has breached the provision of the Agreement or (b) suspension is necessary to prevent harm or liability to other Merchants or third parties, including any third-party payment processor, or to preserve the security, stability, availability or integrity of the OneLocal Service. OneLocal will have no liability for taking action as permitted above. For avoidance of doubt, Merchant will remain responsible for payment of Fees during any suspension period. However, unless this Agreement has been terminated, OneLocal will cooperate with Merchant to restore access to the Service once it verifies that Merchant has resolved the condition requiring suspension.
8.3 Termination for Cause. Either party may terminate this Agreement if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). If Merchant terminates during the Agreement for any reason other than the foregoing, Merchant will be responsible for the fees due for the then current Term. OneLocal may also terminate this Agreement immediately if Merchant breaches Sections 2.4, 2.7, 5 or 6.3, for repeated violations of other Sections of this Agreement, or if applicable, a breach of the parties’ BAA.
8.4 Effect of Termination. Upon any expiration or termination of this Agreement: (i) Merchant’s license rights shall terminate and it must immediately cease use of the OneLocal Service and delete (or, at OneLocal’s request, return) any and all copies of any OneLocal documentation, scripts, passwords or access codes and any other OneLocal Confidential Information in Merchant’s possession, custody or control and (ii) Merchant’s right to access any Merchant Data in the applicable Service will cease and unless otherwise precluded by a BAA, OneLocal may delete any such data in its possession at any time. If OneLocal terminates this Agreement for cause as provided in Section 8.3 (Termination for Cause), any payments for the remaining portion of the Term will become due and must be paid immediately by Merchant. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
8.5 Survival. The following sections shall survive the termination or expiration of this Agreement for any reason: 1, 3.1, 3.3, 5-7, 8.4, 9 and 10 and any payment obligations incurred prior to the expiration or termination of this Agreement. In the event that OneLocal is acquired, sold or re-named, the surviving or acquiring entity shall not be relieved of its obligations under this Agreement.
9. LIMITATION OF LIABILITY
9.1 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3, IN NO EVENT WILL ONELOCAL OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; (d) BREACH OF DATA OR SYSTEM SECURITY; OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, 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.
9.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.3 IN NO EVENT SHALL ONELOCAL, ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS BE LIABLE TO THE MERCHANT IN AGGREGATE FOR MORE THAN THE AMOUNT OF ANY ACTUAL DIRECT DAMAGES UP TO THE FEES PAID TO ONELOCAL BY THE MERCHANT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE
9.3 NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK.
10. GENERAL PROVISIONS
10.1 Assignment. This Agreement shall not be assigned or transferred by the Merchant, whether voluntarily or involuntarily or by operation of law, in whole or in part, without the prior written consent of OneLocal. Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any assignment in violation of this Section 10.1 shall be null and void from the beginning, and shall be deemed a material breach of this Agreement.
10.2 Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
10.3 Choice of Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada excluding all conflict of laws provisions and excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods. The courts of Ontario shall have exclusive jurisdiction to resolve any dispute arising pursuant to this Agreement.
10.4 Compliance with Laws. Each party agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries, and will not transfer, or authorize the transfer, directly or indirectly, of the OneLocal Service, the OneLocal materials or any direct product of any of the foregoing to a prohibited country or otherwise in violation of any such restrictions or regulations.
10.5 Notices. Standard communications may be delivered by email. All formal notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the Merchant’s address set forth on the Order Form. OneLocal’s address is 325 Front St West, 4th Floor, Toronto, Ontario, Canada, M5V 2Y1. Notice shall be considered delivered and effective on the earlier of actual receipt or: (a) the day following transmission if sent by email when followed by written confirmation by registered overnight carrier or certified mail; or (b) four (4) days after posting when sent by certified mail.
10.6 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
10.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
10.8 Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party). If either party’s performance is prevented by a force majeure event for a period of more than forty-five (45) days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts due and payable immediately prior to the commencement of such force majeure event.
10.9 Headings and References. The headings and captions used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
10.10 Changes to this Agreement. No changes or amendments may be made to the Agreement without the prior written consent of both OneLocal and the Merchant.
10.11 Complete Understanding. This Agreement and all attachments and Schedules, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement.