BY USING ANY ELEMENT OF THE PLATFORM (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 7(g). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE PLATFORM, INCLUDING USE OF ANY PART THEREOF. CUSTOMER REPRESENTS AND WARRANTS TO CULTURA THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE PLATFORM ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO CULTURA THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
1. Customer’s Use of the Platform
- Access. Cultura may, at its sole discretion, make its software-as-a-service platform and all surveys, reports, and any other content, materials, or information thereon (collectively, the “Platform”) available to Customer from time to time on the terms and conditions set out herein. The Platform includes any websites used by Cultura to make any element of the Platform available (collectively, the “Website”).
- Restrictions on Use of the Platform. Customer will not (and will not attempt to):
- use the Platform in any manner that is contrary to any instructions or guidelines for use of such software provided by Cultura from time to time or that violates applicable laws;
- use the Platform in any way that may disable, overly burden, impair, or otherwise interfere with servers or networks to which such Platform is connected (e.g., a denial of service attack);
- use any data mining, robots, or similar data gathering or extraction methods, or copy, modify, reverse engineer, reverse assemble, disassemble, or decompile the Platform or any part thereof or otherwise attempt to discover any source code; or
- use the Platform for the purpose of building a similar or competitive product or service.
- Suspension. Cultura may suspend or terminate Customer’s access to and use of the Platform, immediately and without notice, if Cultura reasonably believes that Customer may have breached this Agreement.
2. License and Ownership
- Customer Data. Customer grants to Cultura a non-exclusive, royalty-free, irrevocable, fully paid-up, perpetual and worldwide right and license to access, copy, reproduce, perform, modify, collect, store, process and otherwise use any data, information or other materials Customer provides to Cultura (“Customer Data”), including through the Platform, for use in connection with this Agreement or to generate data that is anonymized and aggregated so that it does not contain any information about an identifiable individual (such information, “Personal Information”, and such data, “Aggregated Statistical Data”). Customer represents and warrants to, and covenants with Cultura that the Customer Data will only contain Personal Information in respect of which Customer has obtained all applicable third party consents, authority and permissions, and has made all applicable third party disclosures, in each case as required by applicable laws, regarding all collection, storage, access, use, disclosure, transmission and processing of Personal Information, including the processing of Personal Information to create Aggregated Statistical Data.
- Cultura Property. Cultura expressly reserves all rights, title, and interest in: (i) the Platform (or any part thereof); (ii) all Aggregated Statistical Data; and (iii) all other materials or content (including presentations or design documents) provided by Cultura under this Agreement (collectively, the “Cultura Property”). All rights, title and interest in the Cultura Property will remain with Cultura (or Cultura’s third party suppliers, as applicable).
3. Warranties; Disclaimer; Indemnity
- DISCLAIMER. THE PLATFORM AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY CULTURA ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CULTURA HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. CULTURA DOES NOT WARRANT THAT THE PLATFORM (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED.
- Indemnity. Customer will defend, indemnify and hold harmless Cultura, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s warranties set out in Section 2(a) (Warranty Re: Personal Information); or (iii) use of the Platform by Customer or any individuals who are an employee or contractor of Customer.
4. Limitation of Liabilities
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL CULTURA BE LIABLE TO CUSTOMER FOR ANY: (I) DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
5. Term and Termination
- Term and Termination. This Agreement will commence on the Effective Date and continue until this Agreement is terminated in accordance with its terms (the “Term”).
- Termination for Convenience. Either Party may terminate this Agreement at anytime by providing 30 days’ prior written notice to the other Party.
- Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 2 (License and Ownership), Section 3 (Warranties; Disclaimer; Indemnity), Section 4 (Limitation of Liabilities), Section 5(c) (Survival), Section 6 (Customer Reference), and Section 7 (General Provisions).
6. Customer Reference
During and after the Term:
- Customer will use commercially reasonable efforts to act as a customer reference for Cultura’s potential customers and clients;
- Cultura may use Customer’s name in its promotional and marketing materials, including on any Cultura website, to reference any and all products, content or services it provides to Customer in relation to this Agreement; and
- Cultura may publish an anonymized case study on any and all products, content or services it provides to Customer in relation to this Agreement.
7. General Provisions.
- Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the other Party. Unless otherwise mutually agreed to by the Parties, all notices must be in writing, notices sent by Customer to Cultura must be sent to the address set out in the first paragraph of this Agreement and notices sent by Cultura to Customer must be sent to the current address that Cultura has on file for Customer.
- Assignment. Customer may not assign this Agreement to any third party without the prior written consent of Cultura. Cultura may assign this Agreement to any third party without the prior written consent of Customer. Any assignment in violation of this Section 7(b) will be void. The terms of this Agreement will be binding upon permitted successors and assignees.
- Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein.
- Force Majeure. Cultura will not be liable for delays caused by any event or circumstances beyond Cultura’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, or internet service provider failures or delays.
- Severable and Waiver. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will automatically be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Each Party’s relationship to the other Party is that of an independent contractor, and neither Party is an agent or partner of the other.
- Entire Agreement and Amendments. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other communications, whether written or oral. No amendment, supplement, modification, waiver, or termination of this Agreement will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, UNLESS PROHIBITED BY APPLICABLE LAW, CULTURA MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY CULTURA, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).