LAST UPDATED NOVEMBER 21st, 2016
This Agreement (the “Agreement”) is between Foko Inc., a Canadian corporation with a registered office at 153A Promenade du Portage Suite 200, Gatineau, QC J8X 2K4 (“Company”), and the organization agreeing to this Agreement (“Customer”). This Agreement governs access to and use of the Foko Service (the “Service”) including Foko client software (“Software”), websites and services (together, the “Services”).
1. SERVICE TERMS
1.1 Provision of Service.
Customer, and Customer’s employees and contractors (together, “End Users”), may access and use the Service in accordance with this Agreement.
Customer is responsible for use of the Service by its End Users. Customer and its End Users must use the Service in compliance with the Foko’s Acceptable Use Policy as made available on Company’s corporate website. Both parties will comply with laws and regulations applicable to it regarding the Service, if any.
1.3 Customer Administration.
Customer may specify End Users as “Administrators”. Administrators may have the ability to access, disclose, restrict or remove Customer Content in or from Service accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Service accounts. Company’s responsibilities do not extend to the Customer’s internal management or administration of the Service. Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators’ use of the Service complies with this Agreement.
1.4 Unauthorized Use and Access.
Customer will prevent unauthorized use of the Service by its End Users and terminate any unauthorized use of or access to the. The Service is not intended for End Users under the age of 13. Customer will ensure that it does not allow any person under 13 to use the Service. Customer will promptly notify Company of any unauthorized use of or access to the Service, provided, however, that Company shall be under no obligation to take any action in respect of Customer’s failure to prevent unauthorized access to the.
1.5 Company Access.
Company will have the ability to see the details of Customer’s End Users, when they signed up to use the Service, the date of each User’s last login and information transmitted by such End Users. Company shall use commercially reasonable efforts to prevent unauthorized access to or use of the Company network and shall notify Customer promptly of any such unauthorized access or use.
If an End User (i) violates this Agreement or (ii) uses the Service in a manner that Company reasonably believes will cause it liability, then Company may request that Customer suspend service or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, Company may do so.
1.7 Security Emergencies.
Notwithstanding anything in this Agreement, if there is a Security Emergency then Company may automatically suspend use of the Service and will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Service that does or could disrupt the Service, other customers’ use of the Service, or the infrastructure used to provide the Service and (ii) unauthorized third-party access to the Service.
1.8 Modification to the Service.
Company may update the Software and Services from time to time. If Company changes the Software or Services in a manner that materially reduces their functionality, Company will inform Customer via the email address associated with the account.
2. FEES & PAYMENT TERMS
Customer will pay, and authorizes Company to charge for all fees specified in Order Forms. Customer is responsible for providing complete and accurate billing and contact information to Company. Company may suspend or terminate the Services if fees are past due.
2.2 Invoicing and Payment.
Fees will be invoiced in currency stated in the Order Form in advance and otherwise in accordance with the Order Form due thirty (30) days from receipt of invoice provided.
Customer is responsible for all taxes. Company will charge tax when required to do so. If Customer is required by law to withhold any taxes, Customer must provide Company with an official tax receipt or other appropriate documentation.
3. TERM AND TERMINATION
This Agreement commences on the Effective date as described on the Order Form and continues until the end of the subscription period as described on the Order Form, or earlier in accordance with the provisions set out in Section 3.2, or as extended by mutual, written agreement.
Either party may terminate this Agreement if: (i) the other party is in material breach and fails to correct a material breach of its obligations under this Agreement within twenty (20) days after receipt by such other party of written notification from the notifying party of such material breach; (ii) files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party; or (iii) as may be described in the Order Form.
The following sections shall survive the termination or expiration of this Agreement for any reason: 2.2, 3.3, 3.4, and 4-6 and any payment obligations incurred prior to the expiration or termination of this Agreement.
3.4 Effect of Termination.
Upon termination of this Agreement, Customer and its End Users shall cease use of the Foko Service.
4. PROPRIETARY RIGHTS
Except for the rights and licenses granted in this Agreement, Company owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights) in the Foko Service, (including the underlying software and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof). Customer acknowledges that Company shall have the sole right to maintain, enhance or otherwise modify the Foko Service.
Company will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Customer Content. These measure are designed to protect the integrity of Customer Content and guard against the unauthorized or unlawful access to, use, and processing of Customer Content. Customer agrees that Company may transfer, store, and process Customer Content in locations other than Customer’s country. “Customer Content” means the account and contact information, as well as all photos, comments, likes, photos reshare or any other content submitted to the Service by Customer or End Users.
Customer may from time to time provide Company with suggestions, comments and other feedback (“Feedback”), via email or other means, relating to each of the Service. Company may use such Feedback in the Service or in any other Company products or services (collectively, “Foko Offerings”). Accordingly, Customer agrees that: (a) Company is not subject to any confidentiality obligations in respect to the Feedback, (b) the Feedback is not confidential or proprietary information of Customer or any third party and Customer has all of the necessary rights to disclose the Feedback to Company, (c) Company (including all of its successors and assigns and any successors and assigns of any of the Foko Offerings) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any Foko Offerings, and (d) Customer is not entitled to receive any compensation or reimbursement of any kind from Company.
4.4 Reservation of Rights.
Except as set forth in Section 2, Company reserves all rights and grants Customer no licenses of any kind hereunder, whether by implication, estoppel, or otherwise.
5. WARRANTIES & LIMITATION OF LIABILITY
5.1 Customer Representations.
Customer will not (i) sell, resell, or lease the Service; (ii) use the Service for activities where use or failure of the Service could lead to physical damage, death, or personal injury; or (iii) reverse engineer the Service, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law.
COMPANY PROVIDES THE SERVICE “AS IS”, AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
5.3 Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, TO THE OTHER RELATING TO THE SERVICES WILL BE LIMITED TO ONE MONTH OF CUSTOMER’S SERVICE FEE FOR THE SERVICE PAID BY CUSTOMER HEREUNDER. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE CUSTOMER FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO CUSTOMER TO THE EXTENT PROHIBITED BY LAW.
Client Indemnity. Customer shall indemnify, defend, and hold Company (including its officers, directors, agents, and employees) harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, and/or judgments (collectively “Claims”), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from Company by reason of any Claim arising out of or relating to: (a) bodily injury (including death) or damage to tangible personal or real property caused by any act, error or omission, or misconduct of Customer; (b) violation of any law or regulation by Customer (including, without limitation, any privacy or personal information protection law or regulation); or (c) breach of any warranties by Customer. Company shall notify Customer promptly of any Claims, permit Customer to control the defense and settlement of such Claims (provided that Company may participate with counsel of its own choosing, at its own expense), and assist Customer, at Customer’s expense, in defending or settling such Claims.
Company Indemnity. Company shall defend, indemnify and hold harmless Customer (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Customer as a result of any claim, judgment, or adjudication against Customer arising from a claim that arises from Customer’ use of the Service.
Indemnification Procedure. The indemnified party’s obligations under this Section 5 shall be conditioned upon the indemnified party having (a) given the indemnifying party prompt notice, in writing, of any claim or threat of claim of such alleged infringement, and (b) permitted the indemnifying party, by its counsel, to control the defense and settlement of such claim.
6. MISCELLANEOUS PROVISIONS
This Agreement shall not be assigned or transferred by Customer, whether voluntarily or involuntarily or by operation of law, in whole or in part, without the prior written consent of Company. Any assignment in violation of this Section 6.1 shall be null and void from the beginning, and shall be deemed a material breach of this Agreement.
6.2 Waiver and Amendment.
No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
6.3 Choice of Law.
Customer and Company explicitly agree that this Agreement shall be governed by the laws of the province of Ontario, Canada. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer agrees that any claim or dispute that arises in whole or in part from the Service shall be heard and resolved exclusively in a court of competent jurisdiction in the province of Ontario, Canada. Both parties consent to the personal jurisdiction of such courts, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts.
6.4 Complete Understanding.
This Agreement including the Customer’s invoice and Order Form, shall constitute the entire agreement between Customer and Company concerning the Foko Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
Standard communications may be delivered by email. All formal notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the addresses listed on the Contact Company page. Notice shall be considered delivered and effective on the earlier of actual receipt or: (a) the day following transmission if sent by telex, telegram or facsimile when followed by written confirmation by registered overnight carrier or certified mail; or (b) four (4) days after posting when sent by certified mail.
6.6 No Waiver.
No waiver of any of the terms of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and either party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
6.7 Independent Contractors.
The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venture, or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
6.8 Force Majeure.
Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party). If either party’s performance is prevented by a force majeure event for a period of more than forty-five (45) days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts due and payable immediately prior to the start of such force majeure event.
6.9 Compliance with Laws.
Each party agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries, and will not transfer, or authorize the transfer, directly or indirectly, of the Company Service or any direct product of any of the foregoing to a prohibited country or otherwise in violation of any such restrictions or regulations. The Services are controlled by Company and operated by it from its offices in Gatineau, Quebec. If Customer chooses to access the Services from locations other than Canada and the United States of America, Customer will be responsible for compliance with all local laws of such other jurisdiction and Customer agrees to indemnify Company and its affiliates, officers, employees, agents, suppliers or licensors for Customer’s failure to comply with any such laws.