Terms & Conditions

Terms of Service for DataCandy, a tradename owned by Paystone Inc.), hereafter “DataCandy”, “us”, or “we".

BY SIGNING ONBOARDING FORMS, YOU CONFIRM THAT YOU ARE 13 YEARS OF AGE OR OLDER, HAVE READ, UNDERSTAND AND AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF DATACANDY’S ONLINE SERVICE (COLLECTIVELY, THE “SERVICE”). 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 TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CLIENT”, “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. AS PART OF DATACANDY’s SERVICE, INCLUDING OFFLINE COMPONENTS, DATACANDY WILL PROVIDE YOU WITH USE OF THE SERVICE FOR THE DURATION OF THE TERM. FOR REFERENCE, A DEFINITIONS SECTION IS INCLUDED AT THE END OF THESE TERMS OF SERVICE.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE, BUT ARE NOT LIMITED TO, VARIOUS LIMITATIONS AND EXCLUSIONS, AND INDEMNITIES.  

THESE TERMS OF SERVICE MAY BE AMENDED OR UPDATED BY US FROM TIME TO TIME WITHOUT NOTICE AND MAY HAVE CHANGED SINCE YOUR LAST VISIT TO OR USE OF THE SERVICES. IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS OF SERVICE FOR ANY CHANGES. YOUR USE, WHICH USE INCLUDES YOUR CONTINUING TO MAKE AVAILABLE YOUR CONTENT ON THE SERVICES, AFTER ANY AMENDMENTS OR UPDATES OF THESE TERMS OF SERVICE SHALL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF SUCH REVISED TERMS. ANY NEW FEATURES THAT MAY BE ADDED TO THE SERVICES FROM TIME TO TIME WILL BE SUBJECT TO THESE TERMS OF SERVICE, UNLESS STATED OTHERWISE. IF YOU DO NOT AGREE TO ABIDE BY THIS OR ANY FUTURE VERSION OF THE TERMS OF SERVICE, DO NOT USE OR ACCESS (OR CONTINUE TO USE OR ACCESS) THE SERVICES. YOU SHOULD VISIT THIS PAGE PERIODICALLY TO REVIEW THESE TERMS OF SERVICE.

 

  1. Privacy, Security & Confidentiality

DataCandy shall manage and protect Personal Information in accordance with its privacy policy, as found at www.paystone.com/legal.  Without limiting that, you acknowledge that we may (but have no obligation to) access, preserve and disclose your account data and any Customer Data if, in good faith, we believe that same is reasonably needed to (a) comply with applicable law or legal process, (b) enforce these Terms of Service, or (c) protect against imminent harm to any person, any safety of any person, or any property of any person.  You further acknowledge that the Service that use the Internet and other, third-party networks, and that, accordingly, any information processed using such Service may be processed or transmitted over various networks (including those outside of our control). DataCandy will hold in confidence, restrict access to and not disclose to third parties or use for any purpose, other than as contemplated by these Terms of Service, any and all information disclosed by you, and will maintain reasonable safeguards and other security measures designed to ensure the security and confidentiality of such information.

Each party agrees to use the other party’s Confidential Information solely as necessary for performing its obligations under the Agreement and in accordance with any applicable obligations in the Agreement. Each party agrees that it will take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such party’s obligations (which in the case of DataCandy includes performing and improving the Services for the benefit of Client and preparing the Deliverables for the benefit of Client, or in the case of Client, to make use of the Services and Deliverables) hereunder, who each will treat such Confidential Information as provided herein, and who are each subject to obligations of confidentiality to such party that are at least as stringent as those contained herein; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving party will give the disclosing party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information and shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure. 

  1. License Grant & Restrictions

DataCandy hereby grants you a non-exclusive, non-transferable (other than in connection with a permitted assignment pursuant to Section 19) worldwide right to access and use the Service, solely for your own lawful business purposes in accordance with the terms and conditions of the Agreement. The Users are authorized to exercise the rights granted in this Section 2. All rights not expressly granted to you are reserved by DataCandy and its licensors. As used herein, the term “Service” shall include any update, upgrade or new version of the Service released by DataCandy during the Initial Term and any renewal term thereof, which shall be provided to you at no additional cost. You may not access the Service if you or any of your Affiliates is/are a direct competitor of DataCandy, except with DataCandy’s prior written consent, which may be refused in its absolute discretion. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not, except as expressly permitted in the Agreement, (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party, whether for remuneration or not, the Service or the Content in any way (ii) modify or make derivative works based upon the Service or the Content; (iii) create external internet “links” to the Service or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, and/or (c) copy any ideas, features, functions or graphics of the Service. You may use the Service only for your own lawful business purposes and, without limitation, shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including, without limitation, material harmful to children or violative of third party privacy rights; (iii) knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) knowingly interfere with or disrupt the integrity or performance of the Service or the software contained therein; (v) attempt to gain unauthorized access to the Service or its related systems or networks; or (vi) use the Service as a service bureau or allow the use of the Service or the software contained therein by or on behalf of third parties, except as specifically permitted in the Agreement.

 

You hereby grant DataCandy the non-exclusive right, without cost or charge, to access and use the Client Materials for the purpose of providing the Services pursuant to and in accordance with this Agreement.

  1. Your Responsibilities

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, provincial, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) promptly notify DataCandy promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to DataCandy promptly and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another DataCandy user or provide false identity information to gain access to or use the Service.

 

  1. Intellectual Property

DataCandy shall own all rights, titles and interests in features developed by DataCandy, all its Intellectual Property Rights, including all DataCandy Technology, immediately upon their creation, regardless of their level of completion. You hereby irrevocably grants, transfers and assigns to DataCandy all rights, titles and interests, as applicable, in all Intellectual Property Rights, including translation and reproduction rights in any form or format whatsoever, and any related intellectual property rights, and you agrees that DataCandy may register copyrights relative to these materials in the name of DataCandy and renew, reissue or extend such copyrights for any period permitted by law.  You hereby irrevocably waives any moral rights that it may have as of the current date or in the future relative to the Developments, arising from the Copyright Act (Canada), as amended from time to time (or any law replacing such law and having similar effect), or any similar law in any applicable jurisdiction, or in Common Law, to the extent that these rights may be waived in each jurisdiction. These moral rights are waived in favour of DataCandy, its successors and assigns.

  1. Third Party Interactions

During use of the Service, you may purchase or subscribe to goods and/or services from third-party providers. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between you and the applicable third-party. DataCandy and its licensors shall have no liability, obligation or responsibility for any relationship between you and any such third-party. DataCandy does not endorse any third-party software or services. DataCandy provides Application Programming Interfaces (API) only as a matter of integration needs, and in no event shall DataCandy be responsible for any issue relating to third party integration. DataCandy provides the Service to you pursuant to the terms and conditions of the Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services. Service features that may interoperate with third party Applications such as email, POS, social media, BI, and other third-party systems depend on the continuing availability of their respective application programming interfaces (“API”) and programs for use with the Service. If any of these respective parties ceases to make its respective API or program available on reasonable terms for the Service, DataCandy may cease providing such Service features without entitling you to any refund, credit or other compensation. The API guides are for customer use only, and only third parties with expressed written consent from DataCandy have permission to use the API guides.

 

  1. Charges and Payment of Fees

By completing the input of your payment information for the DataCandy Services, you authorize us to process all fees or charges to your account on a monthly basis until we receive notice of cancellation from you on the terms as set out herein. Your payment to us will automatically renew at the end of your monthly term, unless you timely cancel the DataCandy Services You acknowledge and agree that the pricing and Fees are exclusive of any applicable taxes and may be updated or amended from time to time upon notice to you at least 30 days prior to the end of the current monthly term. Your continued use of the Service following such notice constitutes your acceptance of any new or increased charge or fee. Added services based on the increase of locations will be subject to the following: (i) added services will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added services will be agreed upon between you and DataCandy and reflected in information provided to you; and (iii) services added in the middle of a billing month will be charged in full for that billing month. All pricing terms are confidential, and you agree not to disclose them to any third party other than to your attorneys and advisors.

 

  1. Billing; and Other Fees

DataCandy charges and collects in advance for use of the Service. DataCandy will invoice you monthly or as otherwise mutually agreed upon in writing, and where applicable in Onboarding Forms. You will pay for travel and out-of-pocket expenses incurred by DataCandy, provided that any such expense has been pre-approved by you in writing and are incurred due to a legitimate need to staff the project with DataCandy personnel from outside of your geographical area. Fees for other services will be charged as agreed upon in writing by you and DataCandy. DataCandy’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on DataCandy’s income. You agree to provide DataCandy with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name of an authorized billing contact. You agree to update this information within 30 days of any change to it. If you believe your bill is incorrect, you must contact us in writing. Any dispute regarding an invoice must be sent to DataCandy within 30 days of the date of the invoice, and shall include the amount in question and the reasons why you allege that the invoice is incorrect to be eligible to claim an adjustment or credit, failure of which the invoice shall be deemed to be correct and accepted by you.

 

  1. Non-Payment, Suspension and Late Fees

In addition to any other rights granted to DataCandy herein, DataCandy reserves the right to suspend or terminate the Agreement and your access to the Service if your account becomes delinquent (falls into arrears) and any amounts due are not paid within ten days after your receipt of a notice of non-payment from DataCandy. The balance of any amount which remains unpaid more than thirty (30) days after it is due to DataCandy shall accrue interest until paid at the rate equal to the lesser of one and a half percent (1.5%) per  month or the maximum amount allowed under law. Notwithstanding the foregoing, DataCandy reserves the right to suspend or terminate the Agreement and your access to the Service upon Thirty (30) days’ notice if your account becomes delinquent (falls into arrears) and if any amounts due are not paid when due if two (2) or more consecutive payments or three (3) or more payments within any twelve-month period are not paid when due. DataCandy reserves the right to impose a reconnection fee in the event the Agreement is suspended and you thereafter request access to the Service, provided that it shall be a requirement of any reconnection that you shall have cured all monetary defaults.

 

  1. Termination upon Expiration

The Agreement commences on the Effective Date. The Initial Term will be as mutually agreed upon in any Onboarding Forms. Upon the expiration of the Initial Term, the Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term, unless agreed to otherwise in writing. Either party may terminate the Agreement effective only upon the expiration of the then current Term; provided that written notice of intent to terminate must be provided (i) by DataCandy to you at least ninety (90) days prior to the last day of the then current Term and (ii) by you to DataCandy at least thirty (30) days prior to the last day of the then current Term. In the event that the Agreement is terminated (other than by reason of your non-payment), DataCandy will return to you a file of the Customer Data in a machine-readable, non-proprietary format suitable for use for on a personal computer within (i) 30 days of termination if you so request at the time of termination, if terminated by you, or (ii) 30 days if you so request within 30 days of termination if terminated by DataCandy. In the event that DataCandy terminates the Agreement as a result of your breach and you cure such breach within ninety (90) days of the termination, DataCandy will return to you a file of the Customer Data within thirty (30) days of your request thereafter at its then current rates for such services. Notwithstanding any of the provisions of the Agreement, you agree and acknowledge that, other than as specifically set forth therein, DataCandy has no obligation to retain the Customer Data and may delete such Customer Data after the periods referred to in the two immediately preceding sentences, as applicable.

 

  1. Termination for Cause Without limitation

Any breach of your payment obligations uncured within 30 days receipt of notice thereof or your unauthorized use of the DataCandy Service will be deemed a material breach of the Agreement. DataCandy, in its sole discretion, may terminate the Agreement, your password, account and/or use of the Service if you breach or otherwise fail to comply with the Agreement and such breach remains uncured for more than 30 days following your receipt of notice thereof. In addition, DataCandy may terminate a free account at any time in its sole discretion. You may terminate the Agreement if DataCandy breaches or otherwise fails to comply with the Agreement and such breach remains uncured for more than 30 days following DataCandy’s receipt of notice thereof. In the event of such termination, you will not be responsible for any fees payable following the effective date of such termination but will be responsible to pay any fees payable up to the date of such termination.

 

  1. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into the Agreement. DataCandy represents and warrants that it will provide the Service in a good and workmanlike manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with DataCandy help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

 

  1. Mutual Indemnification

Client shall be liable to DataCandy for, and shall indemnify and hold harmless DataCandy and its affiliates from and against all Losses in connection with or relating to any of the following:  

  1. any death or bodily injury to any third party to the extent caused by the acts or omissions of Client;
  2. any loss or damage to any tangible person property of any third party to the extent caused by the acts or omissions of Client;
  3. any liability to third parties arising in connection with the performance of this Agreement to the extent of and in proportion to the negligence, breach of duty, violation of applicable Laws, or other fault of Client (including any gross negligence, wilful misconduct or fraud or any theft or other misappropriation of DataCandy’s property or funds by Client); and
  4. the misuse, disclosure or other misappropriation by Client of DataCandy’s Confidential Information in breach of Client’s obligations under this Agreement. 

DataCandy shall be liable to Client for, and shall indemnify and hold harmless Client and its affiliates from and against all Losses in connection with or relating to any of the following:  

  1. any death or bodily injury to any third party to the extent caused by the acts or omissions of DataCandy;
  2. any loss or damage to any tangible person property of any third party to the extent caused by the acts or omissions of DataCandy;
  3. any liability to third parties arising in connection with the performance of this Agreement to the extent of and in proportion to the negligence, breach of duty, violation of applicable Laws, or other fault of DataCandy (including any gross negligence, wilful misconduct or fraud or any theft or other misappropriation of Client’s property or funds by DataCandy); and
  4. the misuse, disclosure or other misappropriation by DataCandy of Client’s Confidential Information in breach of DataCandy’s obligations under this Agreement.

 

  1. Disclaimer of Warranties

DATACANDY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. DATACANDY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE FULLY SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED, LICENSED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH CONTENT AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. DATACANDY DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY THIRD PARTY CONTENT OR THIRD PARTY SOURCES. THE SERVICE AND ALL CONTENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED BY DATACANDY AND ITS LICENSORS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

  1. Service Level

DataCandy will ensure that the Service is Available for Client’s use no less than ninety nine percent (99%) of the time, seven days a week, 365 days a year, measured on a calendar month basis, except for scheduled downtime periods. This Service level for Availability is calculated by taking (A) the number of minutes in the Scheduled Available Time (defined below) during the Availability period of a calendar month, less the total minutes of Unscheduled Down Time (defined below) during the same period, and dividing it by (B) the minutes of Scheduled Available Time during the same Availability period, the result of which shall be expressed as a percentage. During scheduled downtime, DataCandy will make commercially reasonable efforts to ensure that the Service is available for use by Client. For purposes of this Service availability level section, the following terms have the following meanings: a) “Availability” or “Available” means all of the following components of the Service are operating and accessible: (1) software, (2) database, (3) operating systems for all servers, and (4) managed network. b) “Unscheduled Down Time” means any period where the Service is not Available, excluding scheduled maintenance windows, critical maintenance (scheduled or unscheduled), and Client requested maintenance downtime. c) “Scheduled Available Time” means 24 hours per day/7 days per week during the applicable calendar month.

 

  1. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE SERVICE, ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

  1. Local Laws and Export Control

The Service and the software and technology used in connection therewith may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. and Canadian agencies. You acknowledge and agree that the Service shall not be used in, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to, countries as to which the United States or Canada maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all applicable U.S., Canadian, Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000 DataCandy and its licensors make no representation that the Service is appropriate or available for use in locations other than the United States of America and Canada. If you use the Service from outside the United States of America and Canada, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or Canadian law is prohibited.

 

  1. Notice

DataCandy may give notice to you by written communication sent by registered mail or by e-mail to your address or e- mail address, as the case may be, on record in DataCandy’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing (if sent by first class, registered mail or nationally-recognized overnight delivery service), upon delivery if sent by a nationally recognized delivery service, to the address set forth in the Onboarding Forms, or upon receipt if sent by e-mail to the e-mail address set forth in the Onboarding Forms. You may give notice to DataCandy at any time upon receipt when sent to the e-mail address <engagement@paystone.com>.

  

  1. Assignment; Change in Control

The Agreement may not be assigned by you without the prior written approval of DataCandy. The Agreement may be assigned by DataCandy without your consent. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of DataCandy directly or indirectly owning or controlling 50% or more of the shares of you (if a corporation) shall be considered to be an assignment for the purposes of this section.

 

  1. General

This Agreement shall be governed by Ontario law and the laws of Canada applicable therein, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of the province of Ontario. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and DataCandy as a result of this agreement or use of the Service. The failure of DataCandy to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by DataCandy in writing. This Agreement, together with any applicable Onboarding Forms, comprises the entire agreement between you and DataCandy and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. DataCandy may refer to you in advertising or publicity.

 

  1. Survival

Sections 1, 4, 12, 13 and 15 of these Terms of Service shall survive any expiration or termination of the Agreement. The Agreement and any amendments thereto may be executed in counterparts. Each such counterpart shall be an original and shall constitute together as one and the same document. The parties agree that a photographic or facsimile copy of the signature evidencing party’s execution shall be effective as an original signature and may be used in lieu of the original for any purpose.

 

  1. Definitions

As used in these Terms of Service and in any Onboarding Forms now or hereafter associated herewith: “Onboarding Forms” means the form(s) evidencing the initial subscription for the Service and any subsequent order forms submitted in written form, and agreed to in writing by DataCandy, as may be amended and/or renewed; “Affiliate” means a corporation or other entity which is directly or indirectly controlled by you or which controls you or is under common control with you; corporations or other entities which are Affiliates of the same corporation or other entity shall be deemed to be Affiliates of each other; “Agreement” means the agreement between the parties constituted by these Terms of Service and the exhibits attached hereto (including any Proposal) and any Onboarding Forms. “Client Data” means all data that is provided by or on behalf of Client or that is received by Service Provider in connection with this Agreement including any information derived from that data and all metadata or other similar information resulting from access or use of the Services; “Client Materials” means and includes, but is not limited to, all Client information, content, trademarks, service marks, data (including Client Data), Client intellectual property, Client Confidential Information and all assets or other property provided or licensed to Service Provider by Client or to which Service Provider was granted access to or came in to possession of as a result of this Agreement. “Confidential Information” means information of either party marked as “Confidential” or “Proprietary” or information which should be reasonably expected to be confidential having regard to the context of disclosure or the nature of the information; including, without prejudice to the generality of the foregoing, the terms of the Agreement as well as business plans, data, strategies, methods, customer and client lists, technical specifications, transaction data, customer data, and any Personal Information, and shall exclude any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving party at the time of disclosure of such information; (B) is independently developed by the receiving party without use of or reference to the other party’s Confidential Information, and without breaching any provisions of the Agreement; or (C) is thereafter rightly obtained by the receiving party from a source other than the disclosing party without breaching any provision of the Agreement; “Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service; “Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service; “DataCandy Technology” means all of DataCandy’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by DataCandy in providing the Service; “Developments” means all features and customizations created, made, conceived or reduced to practice by DataCandy in the course of this Agreement; “Effective Date” means the earlier of either the date these Terms of Service is accepted by signing digitally or in writing, or the date you begin using the Service; “Initial Term” means the contract term, beginning on the contract start date and ending on the contract end date, specified on the applicable Onboarding Forms; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, DataCandy Technology, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “Losses” means all losses, liabilities, judgments, damages, fines, penalties, costs, expenses, interest, causes of action, suits, demands and claims (including taxes) of whatsoever nature, and all related costs and expenses (including any and all reasonable legal fees on a solicitor and own client basis); “Personal Information” means information that (i) relates to an individual person; and (ii) identifies or can be used to identify, locate, or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual;  “Proposal” means a document prepared by DataCandy which includes the word “Proposal” in its title and which may identify, among other things, an executive summary of the Service to be provided, DataCandy’s professional services methodology, your human resource requirements, DataCandy’s project team and details regarding the description of service. In the event of any conflict between the terms of these Terms of Service and the terms of any such Proposal, the terms of these Terms of Service shall prevail unless otherwise specifically set forth in the Proposal. “Service” means the edition of DataCandy’s services identified during the ordering process, and any updates, upgrades or subsequent versions of such services released by DataCandy during the Initial Term or any renewal term, operated and maintained by DataCandy, accessible via its website or another designated web site or IP address, or ancillary online or offline products and services provided to you by DataCandy, to which you are being granted access under these Terms of Service, including the DataCandy Technology and the Content; “User(s)” means you and your Affiliates’ employees, representatives, consultants, contractors, brokers or agents who are authorized by you to use the Service and have been supplied user identifications and passwords by you (or by DataCandy at your request).