THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
IF YOU REGISTER FOR A FREE TRIAL OR A FREE VERSION OF OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR SERVICE.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on July 27, 2018. It is effective between You and Us as of the date of You accepting this Agreement.
WHEREAS, the parties have agreed that WalletCard shall grant Subscriber a subscription to access the Software and shall provide related services, on the terms and conditions set forth herein.
NOW THEREFORE in consideration of the mutual covenants and agreements herein contained, the parties agree as follows:
The following terms shall have the following meanings:
(a) “Affiliate” means any corporation that either: (a) is controlled, either directly or indirectly, by a party to this Agreement, or (b) controls such party, as the case may be. For the purposes of this definition “control” means the ability to vote greater than fifty percent (50%) of the outstanding voting securities in such corporation;
(b) “Anniversary Date” means the date falling exactly one year following commencement of the Subscription;
(c) “Authorized Contractor” means a third party subcontractor, that is not a competitor of WalletCard (as determined by WalletCard in its sole discretion), of the Subscriber that has been pre-approved by WalletCard in writing to perform custom programming for the Subscriber in relation to Software.
(d) “Competitive Product” means a software product which features one or more functionalities materially similar to any of the functionalities of any software product being developed, licensed, marketed, subscribed for, sold or distributed by WalletCard, except where WalletCard provides written consent to the Subscriber that such software product is not directly competitive with the Software;
(e) “Confidential Information” means all data and information in any form disclosed by either party to the other party, including, without limitation: (i) the Subscriber Content; (ii) all data and information concerning WalletCard’s software programs and services including, without limitation, the source code, specifications, flow charts, computer codes, documentation, or any part or component thereof; (iii) all data and information that relates to WalletCard’s finances, business operations, customers, customer products, business plans and opportunities, market research, research, development, know-how, trade secrets, ideas and intellectual property; (iv) the terms and conditions of this Agreement; and (v) the Services and Software;
(f) “Consulting Fees” means the then-current standard service fees of WalletCard, a representative list of which are set forth in Schedule 2;
(g) “Consulting Services” has the meaning set forth in Section 3.2;
(h) “Excluded Event”means one or more of the following: (a) non-compliance by Subscriber with the terms and conditions of this Agreement or any instructions of WalletCard or its Affiliates regarding the use of the Software or Services; and (c) any circumstance external to the Software or Services, including the following: (i) any misuse or negligent use of the Software of Services, including use by Authorized Users that lack the necessary skills, competence or training for the appropriate use of the Software or Services; (ii) any correction or modification of the Software or Services not provided by WalletCard; or (iii) the combination, operation or use of the Software or Services with any third party elements; (iv) the use of information, technology or materials provided by Subscriber or the conformity of the Software with specifications provided by Subscriber; or (v) the occurrence of a Force Majeure event.
(i) “Fees” means all amounts due and payable to WalletCard hereunder by Subscriber, including without limitation (as applicable), Set-Up Fees, Subscription Fees and Consulting Fees;
(j) “Force Majeure” means an act of God, action of the elements, fire, labour disturbances, telecommunications interruption or failure, shortage of labour, material, or supplies, war, invasion, civil unrest, enactment of legislation or issuance of governmental orders or regulations, or other casualty or cause, whether similar or dissimilar, beyond either party’s control;
(k) “Hosting Services” means the hosting services provided by WalletCard to the Subscriber, either through WalletCard’s own servers, or through a third party service provider, on which the Subscriber may access the Subscriber Portal and Software;
(l) “Maintenance Services” has the meaning set forth in Section 3.1;
(m) “Services” means the provision of the Software, plug-in(s) or web portal(s), and all related services provided by WalletCard to Subscriber hereunder, including without limitation, where applicable, in conjunction with the Hosting Services, Maintenance Services and Consulting Services;
(n) “Set-Up Fee” means the initial, one-time, non-refundable access fee, set forth in Schedule 1, to commence and configure the Software for Subscriber’s use of the Services;
(o) “Software” means the internet based software application known as “WalletCard” owned by WalletCard;
(p) “Subscriber Content” shall have the meaning given to such term in Section 6.2;
(q) “Subscriber Portal” means the graphical user interface provided by WalletCard (whether through a third party server or otherwise) to Subscriber, that provides access, via the internet, to the Software;
(r) “Subscription” means the subscription of Subscriber, subject to its compliance with this Agreement, to the Services;
(s) “Subscription Fees” means the subscription fees set forth in Schedule 1;
(t) “Supported Browser” means: (i) Microsoft Edge, Google Chrome Mozilla Firefox (latest updated versions), including without limitation, any and all relevant operating systems, software, programs, upgrades or connections required to install, run, operate and use the same; or (ii) any other browser as may be determined from time to time by WalletCard, in its sole discretion;
2.1Subscription. During the Subscription, the Services are provided by WalletCard for Subscriber’s use on an annual basis, provided that Subscriber:
(a) complies with the provisions of this Agreement;
(b) shall not resell, license, rent, lease, transfer and/or assign (or attempt to do any of the foregoing) the rights granted to Subscriber by WalletCard in relation to the Software or Services, in whole or in part, to any third party;
(c) shall not transmit (in any manner) to, or permit any, third party to use and/or gain access to the Software or Services;
(d) shall not modify, alter, adapt, change or reverse engineer, tamper with any source code in relation to the Software or Services, or merge with another software program or other material to create an updated original work, create derivative works or modify another software application or website so as to falsely imply that it is associated with Software, WalletCard, or any other software or service provided by WalletCard;
(e) shall not download, store, reproduce, transmit, display, copy, distribute, commercially exploit or use the Software or Services, or any portion thereof, other than as expressly permitted hereunder, or any modification to the Software or Services set forth in subparagraph (d) above;
(f) shall not use or access the Services: (a) in any manner (including without limitation those listed in this Section 2.1) which may infringe Intellectual Property Rights of WalletCard; (b) in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of this Agreement; (c) to upload, post, host, or transmit unsolicited bulk e-mail “Spam”, short message service “SMS” message, viruses, self-replicating computer programs “Worms”, or any code of a destructive or malicious nature; or (d) in any manner that would contravene any laws in Canada or in any other jurisdiction;
(g) accesses, operates or uses the Software solely via the Supported Browser or through such other connections that conform to WalletCard’s then applicable hardware, software (including, but not limited to, the use of a PDF reader) and communication specifications, and Subscriber must adhere to all such specifications in configuring such connections to properly function with Software. For the avoidance of doubt, WalletCard is in no way responsible or liable for the provision or cost of such connections or any related hardware or software to facilitate the connections or for the ability or inability of such connections to properly function or perform on Subscriber’s behalf.
2.2Modifications by WalletCard. In the interests of improving the Software for its general customer base, WalletCard will make modifications in the Services or Software. Such modifications may occur at any time, and from time to time, with or without notice, and have the effect of modifying or discontinuing, temporarily or permanently, one or more features associated with the Services or Software. The continued use of the Services following any modification constitutes Subscriber’s acceptance of any and all modifications.
2.3Suspension of Access. In the interest of maintaining operability in the Software and Services, WalletCard reserves the right to temporarily suspend the Services, including without limitation, for maintenance, repairs or installation of upgrades, and will endeavor, but is not obligated, to provide reasonable notice prior to any such suspension. For the avoidance of doubt, any such reasonable suspension shall not entitle Subscriber to any refund, credit or discount from the Fees payable to WalletCard hereunder.
3.1 Maintenance Services. During the Subscription, WalletCard shall use reasonable efforts to provide certain maintenance services in connection with the Software, which shall be comprised of the provision, from time to time, to Subscriber of updates and/or upgrades to the Software (the “Maintenance Services”).
3.2 Consulting Services. The consulting services shall comprise technical assistance, software consulting, custom development, implementation, training and all other services provided by WalletCard to the Subscriber in connection with the Software, other than the Maintenance Services (the “Consulting Services”). In the event that WalletCard agrees to provide the Subscriber with Consulting Services, then unless otherwise specifically mutually agreed in writing, the following terms and conditions shall apply:
(a) Statement(s) of Work. Where WalletCard and the Subscriber jointly executes a statement of work substantially in the form attached hereto as Schedule 3 (“Statement of Work”), WalletCard shall serve as an independent consultant to the Subscriber to provide the Consulting Services set forth in the relevant Statement of Work on the commercial terms set forth in each Statement of Work and subject to the terms and conditions set forth in this Agreement. Each such Statement of Work is deemed to be incorporated into this Agreement upon execution thereof. In the event of an inconsistency between the Agreement and a Statement of Work, the terms set forth in this Agreement shall prevail.
(b) Charging Rates. Unless otherwise specified in a Statement of Work, all Consulting Services shall be chargeable by WalletCard on the basis of its then-current standard charging rates applicable to its general customer base.
(c) Change Control. Where either party wishes to make a change to the agreed scope and content of the Consulting Services, such party shall submit the change request to the other party in writing. Until any change is agreed in writing between the parties, WalletCard will be entitled to continue to perform the Consulting Services and be paid for the Consulting Services as if such change had not been proposed, and shall not be held responsible for any cost or delay resulting from the relevant change request.
(d) Assumptions. WalletCard’s obligation to provide the Consulting Services shall be subject to fulfillment of any assumptions of which WalletCard informs the Subscriber and WalletCard shall be released from its obligation to provide such Consulting Services to the extent of any non-fulfillment of such assumptions.
(e) Training. The Subscriber acknowledges that all training materials furnished by WalletCard constitute Confidential Information of WalletCard, and the Subscriber shall ensure that its trainees use the foregoing for the purposes of such training at the relevant premises of WalletCard only and do not remove any of the foregoing or any part thereof from such premises. No such trainee shall represent to the industry or public that it has the endorsement of WalletCard as having specialist or particular expertise in the use of the Software. Nothing herein shall render any such trainee an employee of WalletCard and such trainees will remain, in all circumstances, subject to the authority, and under the supervision, of the Subscriber.
(f) Subscriber Assistance. WalletCard shall not be responsible for the performance of the Consulting Services or the standard thereof, and shall be entitled to suspend performance thereof, in the event that Subscriber and/or any Authorized User or supplier thereto fails to provide (at Subscriber’s sole cost and expense) all assistance and information reasonably required by WalletCard in connection with the Consulting Services.
(g) Business Hours, Location and Travel Expenses.Unless otherwise agreed in writing:
i. the Consulting Services shall be provided during business hours (i.e. 9 a.m. to 5 p.m. Vancouver time for remote services, or 9 a.m. to 5 p.m. local time for on-site services);
ii. all Consulting Services shall be provided from the premises of WalletCard or its applicable Affiliate; and
iii. where the Consulting Services are requested by the Subscriber to be provided on-site, Subscriber shall reimburse WalletCard on request for all travel, lodging, meals and related costs and expenses (including per diems) incurred by WalletCard in connection with the Consulting Services.
3.3Hosting Services; Supported Browser. Subscriber acknowledges that: (a) the Software can solely be accessed through the use of an internet browser: (i) which has successfully installed the Supported Browser, and (ii) from a personal computer or laptop computer; (b) no license is given to Subscriber to any of the underlying software used by WalletCard, or any third party service provider, as part of the servers to provide the Hosting Services to Subscriber; (c) WalletCard is in no way responsible or liable for the provision or cost of the Supported Browser; and (d) WalletCard makes no representation or warranty as to the service levels of the Hosting Services and Subscriber hereby waives any eligibility for service credits (or any other form of compensation) for any downtime of the Hosting Services.
4.1 Fees. The following terms and conditions shall apply in respect of payment of Fees by Subscriber:
(a) Fees. Subscriber shall pay the Fees to WalletCard in accordance with the terms of this Agreement. Subject to notifying Subscriber at least thirty (30) days in advance, WalletCard reserves the right to increase any Fees from time to time.
(b) Billing. All Fees shall be paid by Subscriber to WalletCard, in advance, either (at the option of WalletCard): (i) on the dates set forth in invoices issued by WalletCard in accordance with the applicable payment terms set forth therein, or (ii) in the event that Subscriber provides WalletCard with its credit card information, by pre-authorized payment to pay the total invoice amount contained in any account that is rendered immediately upon the invoice being rendered or at any time after.
(c) Currency. Unless otherwise expressly provided in this Agreement or the relevant invoice, all Fees are expressed in Canadian Dollars (CAD$).
(d) Late Payment. At WalletCard’s option, WalletCard may assess a late payment fee equal to two per cent (2%) of the unpaid amount for each succeeding thirty (30) day period or portion thereof in which WalletCard has not received payment from Subscriber of Fees when due.
(e) Adjustments. Subscriber shall promptly and carefully review statements and invoices provided or made available by WalletCard to Subscriber. If Subscriber believes any adjustments are needed with respect to any amounts due to WalletCard, or if Subscriber has any other questions or concerns regarding any statement or report provided by WalletCard, Subscriber must so notify WalletCard in writing within thirty (30) days after such invoice or report is received. If Subscriber fails to notify WalletCard within such time frame, WalletCard will not be required to investigate the matter or effect any related adjustment, absent any wilful misconduct by WalletCard. If Subscriber notifies WalletCard after such time period, WalletCard may, in its sole discretion and at Subscriber’s cost, investigate the matter addressed in Subscriber’s notice, but WalletCard will not have any liability to effect any related adjustment absent any wilful misconduct by WalletCard.
(f) Suspension of Services. At WalletCard’s option, WalletCard may suspend provision of any Services if WalletCard has not received payment of Fees from Subscriber when due.
(g) Taxes. All Fees payable to WalletCard are exclusive of any taxes, assessments or duties that may be assessed upon the Software, Services or any licenses under this Agreement, including, without limitation, sales, use, excise, value added, personal property, electronic/internet commerce, export, import and withholding taxes, but not including taxes based upon WalletCard’s income. Subscriber shall directly pay any such taxes assessed against it, including without limitation all taxes that arise out of transactions completed by Subscriber using the Software. Subscriber shall promptly reimburse WalletCard for any such taxes payable or collectable by WalletCard. If any tax in the nature of withholding tax is payable on any sums payable to WalletCard under this Agreement, Subscriber shall pay WalletCard such amount as is necessary to ensure that the net amount received by WalletCard after such withholding shall be equal to the amount originally due.
(h) Collection Expenses. Subscriber agrees to reimburse WalletCard for any and all collection related expenses incurred by WalletCard in the collection of any amounts owed to WalletCard pursuant to this Agreement.
4.2No Refunds. No refunds or credits will be issued to Subscriber for any non-use, or partial use, of the Services or for any other reason.
5. ACCESS TO THE SOFTWARE
5.1Authorized User. WalletCard shall only permit access and use of Software to the Subscriber or employees and Authorized Contractors (each an “Authorized User”). Authorized Users are required to provide their full legal name, a valid e-mail address, and any other information requested by WalletCard.
5.2Administrator. Subscriber shall designate an Authorized User as administrator for the Subscription (“Administrator”). Each Subscriber may have multiple Authorized Users, and the Administrator will manage the list of active Authorized Users associated with the Subscription. The Administrator may deactivate a Username if the Administrator wishes to terminate access to Software for any particular user.
5.3Usernames and Passwords. Each Authorized User shall utilize a unique identifier (e.g. an email address) (each, a “Username”) and password to access and use Software. The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users. Authorized Users and the Subscriber shall be responsible for protecting the security of Usernames and passwords, or any other codes associated with Software known to them, and for the accuracy and adequacy of personal information provided to WalletCard. The Subscriber shall implement policies and procedures to prevent unauthorized use of Usernames and passwords, and shall promptly notify WalletCard upon suspicion that a Username has been lost, stolen, compromised, or misused.
5.4Subscriber Responsible. Subscriber agrees that it shall be responsible for all Authorized Users. Accordingly, this Agreement shall be construed to also apply to all Authorized Users, and Subscriber shall be liable for any breach of the Agreement by an Authorized User.
5.5Subscriber Feedback. For the purposes of improving the Services and the functionality of the Software, Subscriber acknowledges and agrees that it, and the Authorized Users, shall be permitted to provide feedback to WalletCard, solely through feedback and/or bug alert buttons on the Software and/or Subscriber Portal, or any other method or manner as determined in the sole discretion of WalletCard. Subscriber further acknowledges and agrees that: (a) WalletCard does not warrant or guarantee that any such feedback shall be incorporated or implemented into the Software and/or the Subscriber Portal; and (b) where such feedback is so incorporated into the Software and/or the Subscriber Portal, Subscriber shall not have any right or title to any such resulting modifications to the Software and/or the Subscriber Portal.
5.6Prohibited Access. All access to and use of Software via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Services is strictly prohibited, unless otherwise permitted by WalletCard in writing.
6. INTELLECTUAL PROPERTY
6.1Intellectual Property Rights. All copyrights, patents, utility models, trade-marks, service marks, design rights (whether registered or unregistered), database rights, proprietary information rights and all other proprietary rights that may exist relating to, or in connection with, the Services, including without limitation, text, design, graphics, software, source codes, data, training materials, derivative works, any modifications and custom programming (together, “Intellectual Property Rights”) are the sole property of WalletCard. For the avoidance of doubt, any modifications or custom programming made in connection with Software, whether performed by WalletCard, Subscriber, or any other third party, shall remain the sole property of WalletCard. Subscriber shall not obtain any Intellectual Property Rights in the Services or Software, whether in whole or in part, pursuant to or arising out of Subscriber’s use of the Services, except for the rights granted by WalletCard hereunder to Subscriber to use and access the Services as set forth herein. For the avoidance of doubt, any work product created in the course of performance of any Consulting Services shall be and remain the sole property of WalletCard.
6.2Infringing Material. WalletCard is not responsible for any material or data submitted or uploaded to the Software servers by Subscriber (collectively, the “Subscriber Content”), WalletCard reserves the right to delete, move or edit the Subscriber Content that it, in its sole discretion, deems abusive, defamatory, in violation of the law or the Intellectual Property Rights of itself or any third party or is otherwise unacceptable. Notwithstanding any confidentiality, privacy or other obligations imposed upon WalletCard, by applicable legislation, contract or otherwise, Subscriber hereby grants WalletCard a perpetual, irrevocable, royalty-free, worldwide license to store and use the Subscriber Content for data aggregation, analysis and other business purposes. This license shall survive any termination or expiration of this Agreement.
6.3Third Party Claims. WalletCard shall indemnify, defend and hold Subscriber harmless against all losses, liabilities, damages, costs and expenses suffered by Subscriber for any claim asserted or brought against Subscriber based on actual infringement of a third party’s Intellectual Property Rights in connection with the Software (each, a “Third Party Claim”). Subscriber shall allow WalletCard to control any proceedings arising as a result of any Third Party Claim. Subscriber shall make no admission as to liability nor accept any settlement without the written consent of WalletCard. Subscriber shall also, at the request of WalletCard, offer reasonable assistance and cooperation in relation to any such proceedings. Any recovery obtained from such proceedings shall accrue solely for the benefit of WalletCard.
7. LIMITED WARRANTY AND LIMITED LIABILITY
7.1Reasonable Efforts. Notwithstanding anything to the contrary, WalletCard shall be held to a reasonable efforts standard in the performance of its obligations under this Agreement.
7.2No Liability. WalletCard, its affiliates, and all shareholders, officers, directors, employees, subcontractors, agents, successors, or assigns of WalletCard or its affiliates, shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if WalletCard has been advised of the possibility of such damages), resulting from: (a) the use or the inability to use or access Software or any part of the Services (including, but not limited to, in the event of any Force Majeure, such as loss of telecommunications, etc.); (b) the cost of procurement of a substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from Software; (c) any unauthorized access to or alteration of Authorized User transmissions or the Subscriber Content; (d) any price change, suspension or discontinuance of Software and/or the Services, whether in whole or in part; (e) any loss of any part of the Subscriber Content, modification to a feature of the Services or Software itself; (f) any loss of the Subscriber Content subsequent to a suspension or termination of the Subscription herein; (g) statements or conduct of any third party on Software or any part of the Services; or (h) any other matter relating to the Services, including without limitation, the Software.
7.3DISCLAIMER OF SERVICES WARRANTIES. WALLETCARD DOES NOT MAKE, AND HEREBY FULLY DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS REGARDING THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, AND WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
7.4AGGREGATE LIABILITY. IN THE EVENT THAT EITHER SECTIONS 7.2, 7.3 OR 7.4 ARE RENDERED UNENFORCEABLE, IN WHOLE OR IN PART, BY A COURT OF COMPETENT JURISDICTION,SUBSCRIBER AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY ON THE PART OF WALLETCARD OR ITS AFFILIATES UNDER THIS AGREEMENT (INCLUDING FOR BREACH OF ANY PROVISION HEREOF, FUNDAMENTAL BREACH OR ANY OTHER BREACH GIVING RISE TO LIABILITY OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, SOFTWARE OR SERVICES IN ANY OTHER WAY), FOR ANY CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY), SHALL BE LIMITED TO SUBSCRIBER’S ACTUAL DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE GREATER OF: (A) $100, OR (B) THE SET-UP FEE.
8. TERM AND TERMINATION
8.1 Term. This Agreement shall commence on the Effective Date, and each Subscription shall commence fourteen (14) days after the Effective Date and continue for the subscription duration specified in Schedule 1, unless otherwise terminated in accordance with its terms (the “Term”). In the event that the Subscription is annual, or multi-year, and subsequently expires, then the Subscription shall automatically be renewed on a month-to-month basis until terminated in accordance with the terms of this Agreement.
8.2 Termination by Either Party. In the event that either of the parties wishes to terminate this Agreement, such party must, notwithstanding Section 9.15, notify the other party in writing, at least thirty (30) days prior to the end of the Term (each, a “Termination Notice”).
8.3 Termination by WalletCard for Non-Compliance. WalletCard, in its sole discretion, has the right to suspend or discontinue access to the Software or Services to any Subscriber without notice for non-compliance (including, but not limited to, non-payment of any Fees), as determined in the sole discretion of WalletCard, with this Agreement, and pursue any other remedy legally available to it.
8.4 Retrieval of Subscriber Content. Following delivery of a Termination Notice, Subscriber shall have thirty (30) days to retain extraction services from WalletCard to retrieve Content from the Software. Extraction fees to be determined on a case by case basis.
9.1Non-Disclosure. Each party agrees to use reasonable efforts, during the Term and for a further three (3) years thereafter, not to disclose any Confidential Information of the other party to any third parties. Notwithstanding the foregoing, the Subscriber agrees that WalletCard shall be permitted to disclose Confidential Information: (a) to the extent that such disclosure is reasonably necessary in connection with its performance of its obligations under this Agreement, (b) that was known to WalletCard prior to Subscriber’s disclosure hereunder or that becomes publicly available through no fault of WalletCard, or (c) not gained as a result of a breach of the Agreement.
9.2Non-Competition. Subscriber shall not, either alone or in partnership or in conjunction with any person, firm, company, partnership, joint venture, syndicate, association or any other entity or group, whether as principal, agent, contractor, director, officer, owner, shareholder, consultant, independent contractor or in any capacity or manner whatsoever whether directly or indirectly, for a period of three (3) years following the termination of the Subscription:
(a)divert, entice or take away from WalletCard or attempt to do so or solicit for the purpose of doing so, any business of WalletCard, or any person, firm, company or other entity that was a contractor, client, customer, supplier, principal, shareholder, investor, collaborator, strategic partner, licensee, contact or prospect of WalletCard during the Subscription; and
(b)develop, finance the development of, create, publish, license, market, endorse, contribute to, invest in, sell or distribute any Competitive Product.
9.3Publicity. WalletCard is entitled to disclose the existence of this Agreement, the parties to, and the scope of the Subscription to any third parties, including but not limited to, on any website and/or publications of WalletCard, and to display Subscriber’s name and logo in this context.
9.4Third Party Vendors and Websites. Subscriber acknowledges and agrees that WalletCard may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required in connection with the provision of the Hosting Services.
9.5Back-ups. While the Software will, from time to time, back up and store the Subscriber Content, WalletCard does not represent or warrant that: (a) such back up will be complete, timely, error-free or accurate; and (b) in the event of service interruption, the restoration of Subscriber Content by the Software will be complete, error-free or accurate. Subscriber acknowledges that it has and will have complete back-ups of all Subscriber Content.
9.6Transmission. Subscriber acknowledges and agrees that the technical processing and transmission of data associated with Software, including the Subscriber Content, may be transmitted unencrypted and may involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
9.7WalletCard is a Non-Party. Subscriber agrees that WalletCard is a not a party to any transaction or contract concluded through use of the Software between the Subscriber and any third party.
9.8No Waiver. The failure of WalletCard to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it, or any other provision hereunder, at a later time.
9.9Entire Agreement. This Agreement constitutes the entire agreement between the Subscriber and WalletCard and governs the Subscriber’s use and access to Software and the Services, superseding any prior agreements between the Subscriber and WalletCard (including, but not limited to, any term sheet, proposal, confidentiality agreement, or prior versions of this Agreement).
9.11No Assignment. Subscriber may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of WalletCard.
9.12Headings. The headings in this Agreement and the division of this Agreement into sections are for convenience of reference only and will not affect the construction or interpretation of this Agreement.
9.13Severability. If any provision of this Agreement (or any portion thereof) is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder hereof or thereof will not in any way be affected or impaired thereby.
9.14Enurement. Subject to the restrictions on transfer contained in this Agreement, this Agreement will enure to the benefit of and be binding on the parties and their respective heirs, executors, administrators, successors and assigns.
9.15Notices. Except as otherwise specified in this Agreement, any notices, demands and other communications pursuant to this Agreement shall be in writing and shall be delivered: (a) in person, (b) mailed by first class mail and postage prepaid (registered or certified to the extent available, and via airmail if overseas), (c) couriered overnight, (d) delivered by facsimile transmission, or (e) transmitted electronically in a PDF or similar document-scanning file format, to the party to receive the notice at the applicable address, set out on in this Agreement or at such other address as may be designated in writing by the receiving party. All such notices shall be effective upon receipt.
9.16Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein and the parties irrevocably submit and attorn to the jurisdiction of the courts of British Columbia.
9.17Equitable Relief. Subscriber acknowledges and agrees that Subscriber’s breach of this Agreement may cause WalletCard irreparable damage for which recovery of money damages would be inadequate, and Subscriber agrees that WalletCard shall be entitled, in addition to any other remedies available to it, to seek (in any court of competent jurisdiction) injunctive relief and/or other equitable relief to prevent or restrain any breach by Subscriber or otherwise to protect its rights, without being required to post a bond or other security.
9.18Corporate Authority. Each party represents and warrants to the other party that (a) it has the full corporate power and authority to enter into this Agreement; (b) the execution and delivery of this Agreement and its performance of its duties hereunder have been duly and validly authorized by all necessary corporate action; and (c) this Agreement has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
9.19Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All of these counterparts will for all purposes constitute one agreement, binding on the parties, notwithstanding that all parties are not signatories to the same counterpart. A fax, electronically scanned document (e.g. PDF) or photocopy of this Agreement executed by a party in counterpart or otherwise will constitute a properly executed, delivered and binding agreement or counterpart of the executing party.