Client owns all right, title and interest in and to any original content and images created by clickguru solely for Client as part of the Professional Services, excluding clickguru IP (“Developed IP”).
Client shall promptly provide all Content to clickguru in a format reasonably requested by clickguru. “Content” means any text, graphics, images, data, information, content or intellectual property, including, hyperlinks, trademarks, domain names and logos, provided by Client and, information provided by any Website Users or regarding Client Products.
Clickguru owns all right, title and interest in and to any materials, designs, ideas, know-how and other intellectual property created or developed by clickguru in the performance of the Services, or independently developed by clickguru prior to providing Services or developed outside of the Services, including any Client Website and their “look and feel” (but excluding Content) (“Adjacent IP”).
Clickguru or its licensors own all right, title and interest in and to the Services, Adjacent IP, Third Party Tools (as defined below), and any content, data or materials provided by clickguru and any modifications or derivative works of the foregoing (collectively, “clickguru IP”). clickguru may modify the Application Services at any time. All rights not expressly granted by clickguru to Client hereunder are reserved.
Client may provide suggestions, comments, or other feedback to clickguru with respect to the Services (“Feedback”). clickguru hereby owns all Feedback and may use the Feedback as it sees fit, without obligation or restriction of any kind on account of intellectual property rights or otherwise.
Client shall not itself or permit others to: (i) sub-license, sell, rent, lend, lease, distribute, or make available the clickguru IP; (ii) use the clickguru IP for timesharing, service bureau use otherwise commercially exploit the clickguru IP; (iii) use the clickguru IP in violation of any intellectual property right or in a way that threatens the security or functionality of the clickguru IP; (iv) modify, adapt, translate, aggregate, compile, or create derivative works based on, the clickguru IP; (v) reverse engineer, de-compile or disassemble the clickguru IP; (vi) remove or obscure any proprietary notices on any clickguru IP; (vii) use the clickguru IP to build a similar or competitive product or service; (viii) perform any vulnerability, penetration or similar testing on the clickguru IP; (ix) use the clickguru IP for any form of spam, unsolicited mail, fraud, scam, phishing or similar conduct, or engage in unethical marketing or advertising; or (xi) use the clickguru IP in violation of applicable law, rule or regulation.
Content. Client is solely responsible for all Content. Without limitation, clickguru is not responsible for the completeness, currency, reliability, accuracy, quality, legality or backup of Content. Client shall not itself or permit others to use the Services to process or provide any Content that (i) contains any viruses or other malicious computer programming; (ii) Client does not have the lawful right to create, provide or process; (iii) is false, illegal, discriminatory, hateful, threatening, abusive, harassing, defamatory, libelous, obscene, deceptive, or fraudulent; (iii) violates any applicable laws, or infringes or violates any intellectual property or other rights of any person; (iv) otherwise constitutes unsolicited commercial electronic messages, bulk e-mail, junk mail, or spam; or (v) contains any personal information or personal health information. The foregoing applies to all Client Website visitors, customers or users (collectively “Website Users”). Client shall comply with any Content policies clickguru may adopt and provide to Client in respect of the Services. clickguru may to refuse to provide Services with respect to any Content that is in breach of this Section 3.2 (“Prohibited Content”). clickguru may remove or refuse to post any Prohibited Content or any other content that may be detrimental to the Services. Client shall remove Prohibited Content as soon as technically feasible. clickguru may take appropriate legal action, including notifying the harmed party, of any Prohibited Content.
Client is responsible for all activities occurring through the use of Client’s access credentials and account. Client’s account may not be shared by Client with any other person. Client will promptly notify clickguru of any unauthorized use of the Services.
The Application Services may enable Client to sell its products and services (“Client Products”) through the Client Website(s). Client shall not itself or permit others to make available any Client Products that are hazardous, counterfeit, or stolen, or which are prohibited for sale or distribution. Client is solely responsible for (i) any taxes and fees associated with its e-commerce activities; (ii) procuring and delivering its Client Products; (iii) any and all statements and promises regarding the Client Products; and (iv) handling any questions, complaints or claims about such activities or Client Products.
Client is solely responsible for complying with anti-spam laws, rules and regulations, and for managing and maintaining records of compliance, contact lists, consents, opt-ins, unsubscribes and opt-outs. Client shall regularly notify clickguru of the status of Client contacts (e.g. express consent, implied consent, unsubscribes, etc.), and promptly notify clickguru if Client is cited by any regulatory authority for violation of such legislation.
Chargebacks. Client authorizes clickguru to charge Client’s credit card (i.e. the card that Client then-currently has on file with clickguru) for amounts due. If Client’s payment does not go through for any reason (e.g. chargebacks), then Client will pay to clickguru additional handling and processing fees and charges.
Client shall reimburse clickguru for all out-of-pocket expenses incurred by clickguru in relation to the performance of the Services. Expenses over $500 must be pre-approved by Client (not to be unreasonably withheld or delayed). Expenses set-out in an Order are pre-approved by Client.
Any amounts in this Section 4 exclude sales, use, value-added or similar taxes, or any duties, export and import fees or similar charges (including interest and penalties), regarding the transactions under this Agreement. Client shall pay any such amounts.
The term of these Standard Terms commences as of the Effective Date and continues until terminated in accordance with these Standard Terms (“Term”). Either party may terminate these Standard Terms upon written notice to the other party when all Orders have expired or been terminated. The term of each Order will be specified in the Order.
Either party may terminate this Agreement, or any Order, if the other party, (i) materially breaches these Standard Terms or the Order and does not cure such breach within thirty (30) days of the date of written notice; or (ii) commits an act of insolvency or becomes bankrupt or makes an assignment for the benefit of creditors.
clickguru may suspend provision of any Services: (i) if Client breaches Section 3 or Section 4; (ii) to address any emergency security concerns; or (iii) for scheduled maintenance.
On termination or expiration of any Order, (i) clickguru’s obligations terminate, and (ii) Client shall immediately pay all outstanding sums payable to clickguru under the affected Order(s). Provided Client has complied with this Section 5.4, clickguru shall make available to Client any Content and Developed IP for download prior to or following termination. Clickguru has no obligation to retain any Content or Developed IP after termination. clickguru may retain Content as contemplated herein or if required by law.
THE SERVICES, THIRD PARTY TOOLS, AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY CLICKGURU, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. CLICKGURU DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, WHETHER WRITTEN OR ORAL OR ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. IN ADDITION, CLICKGURU DOES NOT WARRANT THAT THE SERVICES OR THIRD PARTY TOOLS ARE OR WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE OR WILL PROVIDE ANY DESIRED RESULTS.
The Services may interoperate with or be dependent one or more Third Party Tools. clickguru does not warrant, and is not responsible or liable for, any Third Party Tools. If any Third Party Tools cease to be available to clickguru, clickguru may cease to provide same. “Third Party Tools” means third party content, services, software, platforms, connections, interfaces or other technology owned, made available or distributed by third parties.
(a) CLICKGURU’S total aggregate liability IN CONNECTION WITH this Agreement WILL NOT exceed AN AMOUNT EQUAL TO the amount client has paid to clickguru hereunder IN THE 3 month period IMMEDIATELY preceding the first event giving rise to the CLAIM. (b) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL clickguru BE LIABLE FOR ANY: (I) SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, content, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; or (IV) COSTS of cover. (C) THE LIMITS AND EXCLUSIONS APPLY REGARDLESS OF THE CAUSE OF ACTION OR 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.
Client shall indemnify and defend clickguru, and its officers and directors, from and against any and all losses, liabilities, damages, costs and expenses (including reasonable lawyer’s fees) arising out of any claim, action or proceeding that (i) any Content, or any other materials provided by Client, or any Client Products, or the use thereof, infringes or otherwise violates any intellectual property or other proprietary rights; or (ii) arises from Client’s breach of this Agreement. Client shall give clickguru the option to conduct the defence, at Client’s cost, of any such claim and Client will fully cooperate with clickguru in the defense. Client will not settle any such claim without the prior written consent of clickguru.
Undefined Terms. Undefined capitalized terms have the meanings given to them in an Order. (9.2) Compliance with Laws. Each party shall comply with all laws, rules and regulations applicable to the performance of its obligations. Client will comply with all export laws and regulations that may apply to its access to or use of the Services (9.3) Confidentiality. Either party may provide non-public confidential or proprietary information related to its business, technology or operation. Receiving party shall not disclose such information, except clickguru may use and/or disclose Client’s Confidential Information as necessary to provide the Services, including to clickguru’s employees, agents, contractors, and service providers. (9.4) Publicity. Client grants to clickguru a non-exclusive, worldwide, perpetual, sublicensable, royalty-free, fully paid-up right and license to use Client’s trademarks, domain names, and logos and in clickguru’s promotional and publicity materials (including on any clickguru website and in social media campaigns). (9.5) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. (9.6) Relationship. The parties acknowledge and agree that they are independent contractors and nothing herein shall create or imply any joint venture or other relationship. (9.7) Force Majeure. clickguru shall not be liable for delays caused by any event or circumstances beyond clickguru’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, epidemics, pandemics, strikes or other labour problems, Internet service failures or delays, or the unavailability of telecommunications or hosting infrastructure or Third Party Tools. (9.8) Assignment; Subcontractors. Client may not assign this Agreement without the prior written consent of clickguru. clickguru may assign this Agreement without Client’s consent. Any attempted assignment in violation of this Section 9.8 will be null and void. This Agreement shall enure to the benefit of and be binding upon each party and their respective successors, heirs, administrators, executors, and permitted assigns. clickguru may fulfill its obligations under this Agreement through the efforts of, or by contract with, third parties. (9.9) Governing Law; Jurisdiction. The laws of the Province of Ontario and the federal laws therein govern this Agreement, without reference to conflicts of law principles. The parties attorn to the exclusive jurisdiction of the courts in Toronto, Ontario. The 1980 U.N. Convention on Contracts for the International Sale of Goods does not apply. (9.10) Integration; Entire Agreement; Conflicts; No Amendment. All Orders are incorporated into, and governed by, these Standard Terms. These Standard Terms, any applicable Orders and any policies or procedures referenced herein, constitute the entire agreement between parties and supersedes all previous agreements, promises, and representations, whether written or oral, between the parties with respect to the subject matter hereof. If there is any conflict between these Standard Terms and any Order, these Standard Terms control. This Agreement may not be modified except in a written document signed by the parties. (9.11) Severability; Waiver. If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will amend the Agreement to give effect to the stricken clause to the maximum extent possible. No waiver of any breach of this Agreement will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. (9.12) Survival. Notwithstanding the termination or expiry of this Agreement, all obligations which either expressly or by their nature are to continue after the termination or expiry of this Agreement shall survive and remain in effect. (9.13) Language. The parties acknowledge that they have expressly required that this Agreement and all related documents be drafted in the English language. Les parties reconnaissent avoir expressément exigé que le présent convention et tous les documents connexes soient rédigés en langue anglaise. (9.14) Counterparts. This Agreement may be signed in any number of counterparts (original, facsimile or transmitted electronically), by the parties hereto, each of which will be deemed to be an original, but all such separate counterparts will together constitute one and the same instrument.
