Terms & Conditions
12845393 Canada Inc. (d/b/a Mash) (“Mash”, “we”, “our” or “us”) offers an AI Agent Software Service, through its website primary domain mash.com and sub-domains (“Mash Web Portal”) and mobile application “Mash” (the “Mash App”, collectively with the Mash Web Portal, the “Services”).
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY. THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU (“CLIENT” or “YOU”) AND MASH. THESE TERMS GOVERN YOUR ACCESS TO AND USE OF THE SERVICES. BY SIGNING UP FOR AN ACCOUNT, BY DOWNLOADING THE MASH APP, BY USING THE MASH WEB PORTAL, OR BY OTHERWISE USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS (INCLUDING THE LINKED DOCUMENTS REFERRED TO IN THESE TERMS), AS REVISED FROM TIME TO TIME. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT ACCESS OR USE THE SERVICES. IF YOU ARE DISSATISFIED WITH THESE TERMS OR ANY OTHER TERMS, CONDITIONS, RULES, POLICIES, GUIDELINES OR PRACTICES APPLICABLE TO THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESS TO AND USE OF THE SERVICES. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCESS OR USE THE SERVICES. WE WILL PROVIDE YOU WITH PRIOR NOTICE OF ANY SCHEDULED CHANGES TO THE SERVICES OR THE TERMS YOU ARE USING. THE MODIFIED TERMS WILL BECOME EFFECTIVE UPON POSTING OR NOTIFYING YOU BY SUPPORT@MASH.COM, AS STATED IN THE EMAIL MESSAGE. BY CONTINUING TO USE THE SERVICES AFTER THE EFFECTIVE DATE OF ANY CHANGES, YOU AGREE TO BE BOUND BY THE MODIFIED TERMS.
By executing an Order Form or using the Services, you agree to be bound by these Terms.
1.0 SERVICES
1.1 Provision of Services. Mash will, subject to the terms of these Terms and any applicable Supplemental Terms, make the Services specified in the Order Form available to you. The rights granted, and Services to be provided, under these Terms are expressly conditioned on your continued compliance with the terms and conditions of these Terms. You are authorized to use any documentation provided by Mash as is reasonably necessary to use the Services. Except for the limited rights expressly granted herein, no other right, title or interest in the intellectual property rights or technology of Mash is granted and all such rights are hereby expressly reserved. You expressly acknowledge and agree that the Services provided hereunder are solely for your benefit and may only be used by you for your organization’s internal business purposes. Any proposed use of the Services by you for the benefit of any other person or organization, will require you (or such applicable organization) to enter into a separate agreement with Mash and to pay additional fees to Mash.
1.2 Supplemental Terms. Your access to and use of the Services may be subject to Supplemental Terms.
1.3 Term. In respect of each Order Form made hereunder, the Services set out therein shall commence on the Effective Date and continue for the period of time specified in the Order Form (“Initial Term”). The Initial Term shall be automatically renewed for successive renewal terms (each, a “Renewal Term”), each of a length set forth on the Order Form (the Initial Term or any Renewal Term, as applicable, is referred to as the “Term”), unless earlier terminated in accordance with the terms and conditions in this Agreement.
1.4 Usage Limits. Services may be subject to usage limits, including, Authorized User restrictions. Usage limits may be specified in the Order Form or applicable Supplemental Terms. Client may purchase additional usage or rights for additional Authorized Users by entering into an Order Form with respect thereto. If Client’s use exceeds the usage limits or number of Authorized Users that it has purchased, Mash may invoice Client and Client agrees to execute an Order Form for additional quantities of the Services promptly upon request, and/or pay any invoice for excess usage. Client acknowledges and agrees that Mash may price the Services on a tiered basis, with rights for additional usage or additional Authorized Users offered at a greater price per additional usage or additional Authorized User than the pricing set forth in a previously executed Order Form between the parties. Mash makes no representations, warranties or guarantees with respect to the pricing and Fees applicable for additional usage and additional Authorized Users; such pricing and Fees may differ from the pricing and Fees provided under a previously executed Order Form between the parties.
1.5 Access by Authorized Users.
(a) Client may grant any Authorized Users access to and use of the Services subject to any limitations, conditions and restrictions herein.
(b) Client shall keep Authorized User passwords confidential and cause Authorized Users not to share their respective passwords with any other individual.
(c) Client agrees that it shall remain fully responsible and liable for any access to or use of the Services by any Authorized User and any failure by an Authorized User to comply with the terms of this Agreement.
(d) Client agrees (i) to ensure that all registration information submitted by Authorized Users will be true, accurate, current, and complete; (ii) to maintain the accuracy of such information and promptly update such registration information as necessary; (iii) that Authorized Users shall have the legal capacity to comply with these Terms; (iv) that Authorized Users shall at least be the legal age of majority; and (v) that Authorized Users shall not access the Services through automated or non-human means, whether through a bot, script or otherwise.
(e) Client agrees that if Client or Authorized Users provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
(f) Mash reserves the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
1.6 Restrictions on Use. Your use of the Services is subject to the following restrictions and limitations. You shall: (a) not (except as otherwise expressly provided herein) provide, disclose, sublicense or otherwise permit any person to access, use, read, disseminate, transmit, download or reproduce any documentation, Services or Software; (b) not adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify, any Software or Services in any manner or to any extent whatsoever, whether in whole or in part; (c) not disassemble, decompile, reverse engineer, or otherwise in any manner deconstruct all or any part of the Software or Services; (d) not be permitted to use the Services to act as a “service bureau” or in a time-sharing, application service provider or other similar model, to provide the benefit of the use of the Services to any person except as expressly permitted hereby; (e) not use the Services or Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights; (f) not use the Services or Software to store or transmit Malicious Code; (g) not disclose the results of any Software benchmark test without Mash’s prior written consent; (h) not have any right to access or obtain a copy of the object code or source code to the Software; (i) not interfere with or disrupt the integrity or performance of any Services, Software or third-party data contained therein; (j) not attempt to gain unauthorized access to any Software, the Services or its related systems or networks; (k) not permit direct or indirect access to or use of any of the Services or Software in a way that circumvents a contractual usage limit; (l) not frame or mirror any part of any of the Services or Software; (m) not access any Services or Software in order to build a competitive product or service; (n) use the Services only in accordance with applicable documentation and applicable laws and government regulations; or (o) notify Mash promptly of any unauthorized access or use of the Services or Software.
1.7 Client Obligations. You shall be responsible to: (a) reasonably assist, cooperate and facilitate the provision of any of the Services, including the prompt provision of information and assistance that Mash may reasonably request that is required by Mash in order to perform its obligations under this Agreement; (b) provide Mash with access during Client’s regular business hours to any Client facilities or premises and Client Systems to the extent reasonably required by Mash and agreed to by Client in order to allow Mash to perform its obligations under this Agreement. If Client fails to perform any obligation or provide any assistance, access, information or data specified in this Agreement, Mash shall be excused from its performance hereunder to the extent Mash is unable to perform as a result of such Client failure.
1.8 Changes. Mash may update and modify the Software and Services at any time and from time to time, provided that the updates do not result in a material reduction of the functionality or security of the Services. The foregoing shall not limit Mash’s ability to make changes to the Software and Services to comply with applicable law or address a security risk. These Terms shall apply to modifications and updates to the Software and Services.
1.9 Suspension. Mash may suspend immediately Client’s or any Authorized User’s account or access to or use of the Services at any time in Mash’s discretion in the event that Mash determines that such suspension is necessary or prudent, whether for security, emergency, legal, or other such reasons, including if such account or activity is known or reasonably suspected by Mash to be (a) disrupting or causing harm to Mash’s or another person’s computers, systems, or infrastructure or (b) in violation of Section 1.5 or 1.6 or the documentation provided with the Services; provided that, Mash shall use commercially reasonable efforts to notify Client of any such suspension, either before or after such suspension, and shall remove such suspension upon resolution to Mash’s reasonable satisfaction of the circumstances giving rise to such suspension.
2.0 ACCESS AND SERVICE DELIVERY
2.1 Support Services. If applicable, during the Term, Mash shall provide technical and account support specified in the Order Form in accordance with Mash’s support policy. Mash’s Support Policy shall be incorporated into these Terms as Supplemental Terms.
2.2 Links to Other Sites. The Services or Content may provide links to other sites on the Internet for your convenience in locating or accessing related information, products, and services. These sites have not necessarily been reviewed by us and are maintained by third parties over which we exercise no control. Mash expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party websites. Provision of these links do not imply an endorsement with respect to any third party or any website or the products or services provided by any third party.
2.3 Third Party Products. The Services may contain (or you may be sent via the Site or App) links to other websites (“Third-Party Websites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Services or any Third-Party Content posted on, available through, or installed from the Services, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Services and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Services or relating to any applications you use or install from the Services. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. We make no representations or warranties with respect to, nor does it guarantee or endorse, any Third-Party Services. Mash does not guarantee the continued availability of Third-Party Services, and we may disable a Third-Party Service in our sole discretion. Your dealings with the provider of any Third-Party Services are solely between you and the provider. Accordingly, we expressly disclaim responsibility and liability for all Third-Party Services, and you agree that we shall not be responsible for any loss or damage of any sort incurred as a result of any such dealings or as a result of your use of Third-Party Services. If you have any issues with a Third-Party Service, you must contact the provider of the Third-Party Service directly.
2.4 Hosted Environment. The Client Data is hosted on servers located at the Hosting Provider’s facilities. Mash may appoint a new Hosting Provider, relocate the Client Data to any location, or otherwise modify the hosting environment, at its discretion at any time. Client agrees to comply with any policies and terms of the Hosting Provider that are applicable to Client and of which Mash provides Client with notice, as may be amended from time to time, or such other policy as Mash may designate from time to time. Client acknowledges that the Hosting Provider may, without prior notice, monitor Client’s conduct and communications when using the Services in order to verify compliance with applicable laws and the Hosting Provider’s policies. Client acknowledges that Hosting Provider may cooperate with legal authorities in investigating claims of illegal activity involving the Services, Mash or Client.
2.5 Client Data Obligations. Client is solely responsible for implementing safeguards to protect the security of the Client Systems when accessing and using the Services, including to take precautions against Malicious Code.
2.6 Protection of Client Data. Mash will maintain reasonable administrative, physical, and technical safeguards designed for the protection of the security, confidentiality and integrity of Client Data. Those safeguards will include reasonable measures designed for preventing unauthorized access, use, modification or disclosure of Client Data by Mash.
2.7 Personal Information. Mash acknowledges that in connection with its provision of the Services, it may have access to personal information. To the extent Mash collects personal information through its provision of the Services, Mash agrees:
(g) not to use such personal information for any purpose other than as necessary to provide the Services;
(h) not to disclose such personal information to any person except authorized Client employees who require access in order to provide the Services, or where required by law;
(i) so long as Mash remains in possession, custody or control of such personal information, to protect such information in accordance with Section 2.6;
(j) to immediately inform Client of any actual or suspected loss, theft or accidental or unauthorized access, disclosure, copying, use, or modification of personal information;
(k) to refer all privacy related inquiries, requests or complaints relating to the personal information processed by Mash in connection with the Services to Client;
(l) to otherwise comply at all times with applicable privacy laws.
2.8 Anti-Virus Protection. Mash agrees to use industry standard anti-virus protection software and use reasonable efforts to prevent infection of the Services with Malicious Code. Client agrees to use industry standard anti-virus protection software, and reasonable efforts, to prevent infection (via its connection to the Services) of the Software or Client Data with Malicious Code. The parties agree to notify each other as soon as reasonably possible if they become aware of Malicious Code in the Software or Client Data that could reasonably present a threat to either party. Mash shall take commercially reasonable steps to eliminate Malicious Code in the Software. Client shall use reasonable efforts to assist Mash in Mash’s efforts to eliminate Malicious Code. Client shall be responsible to eliminate Malicious Code in Client Data.
2.9 Confidential Information Use / Protection. Each party agrees: (a) not to use any Confidential Information of the other party for any purpose except in the exercise of its rights and performance of its obligations under the Agreement or as otherwise expressly permitted hereunder; (b) to disclose such Confidential Information of the other party only to its officers, directors, employees and permitted third party subcontractors who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than that set forth herein except that Mash will, in the performance of the Services, disclose Client Data to the Hosting Provider and the Hosting Provider may not be under a duty of confidentiality as restrictive as that set forth herein; (c) to protect such Confidential Information (other than Client Data) from unauthorized use, access, theft or disclosure in the same manner that it protects its own similar Confidential Information, but in no event with less care than reasonable care and in the case of Client Data, Mash shall protect Client Data as otherwise expressly set out herein.
2.10 Permitted Disclosure. The foregoing restrictions on disclosure shall not apply with respect to any information which: (a) was or becomes generally known or publicly available through no act or failure to act on the part of the Receiving party; (b) is known by the Receiving party without restrictions on disclosure at the time of receiving such information as evidenced by its records; (c) is rightfully furnished to the Receiving party without restrictions on disclosure by a third party without a breach of such third party’s obligations of confidentiality; (d) is otherwise necessary to establish rights or enforce obligations under this Agreement but only to the extent that any such disclosure is necessary; or (e) is required by law to be disclosed by the Receiving party, provided that the Receiving party: (i) unless otherwise prohibited by law or governmental authority, uses commercially reasonable efforts to provide prior written notice of such disclosure to the Disclosing party to afford the Disclosing party the opportunity to seek a protective order; and (ii) discloses information only to the extent required by law.
2.11 Ownership. Except as otherwise expressly set forth in the Agreement, all Confidential Information shall remain the exclusive property of the Disclosing party and its affiliates, subcontractors, agents, employees or independent contractors that disclosed it.
2.12 Feedback. Submission of Contributions to Mash is voluntary. Client Contributions are subject to the following terms: (a) Client warrants that Contributions do not violate any confidentiality obligations that Client may have to third parties and that they do not contain proprietary rights of third parties; (b) Client contributions become the property of Mash, and by submitting them Client hereby assigns to Mash all Client rights in and to them and waives all moral rights that Client and its representatives have; (c) Mash is free to disclose and use (or refuse to disclose or use) any Contributions at its sole discretion; and (d) Client is not entitled to any compensation or reimbursement of any kind under any circumstances.
3.0 FEES AND PAYMENT
3.1 Service Fees. In consideration for the provision of the Services during the Term, Client shall pay to Mash the Fees. Unless otherwise described in an Order Form, all Fees will be invoiced by Mash on a monthly basis in advance.
3.2 Payment Due. Unless otherwise described in an Order Form or agreed to by Mash in writing, all invoiced amounts are due within thirty (30) days of the date of the invoice.
3.3 Taxes. The Fees are exclusive of all taxes imposed by applicable law in connection with the Fees, including, sales tax, goods and services tax, use, withholding or excise tax and all other like or similar taxes applicable to the provision of Services, and Client shall pay or reimburse Mash for all such applicable taxes (exclusive of taxes based on Mash’s income).
3.4 Additional Payment Terms. If Client has failed to pay any Fees or amounts by the date on which payment is due, such unpaid amounts shall bear interest from the due date to the date of payment at the rate of two percent (2%) per month, such interest to accrue from day to day and to be compounded on a monthly basis (such interest rate being 24.34% per annum). If Client has failed to pay any Fees or amounts within fifteen (15) calendar days of their due date, such failure shall be deemed to be a material breach of the Agreement by Client and in addition to any other remedies available to Mash, Mash shall be entitled, on five (5) days’ written notice to Client, to suspend, without liability, the provision of any Services provided hereunder or in connection herewith until such time as Client has paid all undisputed outstanding amounts in full. Payment shall be made without any right of set-off or deduction. Except as expressly provided for herein, all payments made pursuant to this Agreement are non-refundable. No additional term or condition included in any Client purchase order or other document issued by Client that has not been previously agreed to in writing by Mash shall bind Mash.
3.5 Fee Increases. Notwithstanding the Fees specified in an Order Form, for each Order Form made hereunder, Fees may be increased by Mash, once annually, effective as of the anniversary of the Effective Date (commencing on the first anniversary of the Effective Date). Notice of Fee increases will be provided by Mash to Client at least sixty (60) days prior to the effective date of such Fee increases.
3.6 Compliance. Mash shall have the right (at Mash’s own expense) to conduct periodic inspections and audits of Client’s use of the Services for the purpose of verifying Client’s compliance with the terms of this Agreement. If an underpayment is identified, Client shall within thirty (30) days pay to Mash the full amount of any underpayment.
4.0 PROPRIETARY RIGHTS
4.1 Ownership of Software.
(a) The Software and content and other products and services provided through the Services and all written or electronic items developed for, delivered to or otherwise made available to Client as part of the Services (including, without limitation, forms, reports, specifications, software and code) are protected by intellectual property and copyright laws and treaties worldwide. Client acknowledges and agrees that all right, title and interest whatsoever, in and to the Software and all other intellectual property and materials developed for or delivered to Client or otherwise made available hereunder, including all intellectual property and other proprietary rights therein is, and shall be, owned solely and exclusively by Mash and/or its third party licensors.
(b) Nothing in this Agreement shall, or shall be deemed or construed to, assign, transfer or convey to or vest in Client any title, rights or interest in or to any intellectual property, including in or to the Software or any other written or electronic items developed for, delivered to or otherwise made available to Client as part of the Services, other than the rights specifically and expressly granted herein. Mash reserves all rights not expressly granted to Client hereunder.
(c) Client shall promptly provide Mash with written notice of any use of, access to, disclosure of, reproduction, or transmission of any of the Software or the Services that is in violation of the terms of this Agreement by any person of which it becomes aware.
4.2 Data.
(a) Subject to the license rights granted herein, Mash acknowledges and agrees that all right, title and interest whatsoever, in and to the Client Data including all intellectual property and other proprietary rights therein is, and shall be, as between the parties, owned solely and exclusively by Client.
(b) Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data. Client is solely responsible for the selection and implementation of procedures and processes and controls regarding the access, security, encryption, use and transmission of Client Data to Mash and to ensure the back-up and recovery of any Client Data stored by Mash as part of the Services. Client is solely responsible to obtain all consents that are necessary or required under applicable laws to provide Client Data to Mash for processing in accordance with this Agreement.
(c) Subject to Client’s ownership of the Client Data, Client acknowledges and agrees that all right, title and interest whatsoever, in and to the Mash Data including all intellectual property and other proprietary rights therein is, and shall be, owned solely and exclusively by Mash. Client hereby grants Mash a perpetual, irrevocable, royalty-free, fully paid-up, transferrable, worldwide right and license (with right of sublicense) to (i) collect, compile, copy, reproduce, use and create derivative works from Client Data for the purpose of creating or generating Mash Data; and (ii) collect, use, copy, reproduce, create derivative works from, analyze, disclose, and commercially exploit any Client Data incorporated in the Mash Data for any purpose, including to operate, perform, improve and enhance the Services and to develop and offer new products and services. For the avoidance of doubt, Mash may not use or disclose to a third party any Client Data in any manner that discloses Client’s Confidential Information or the identity of Client or its customers.
4.3 Branding. Subject to Section 7.16 below, neither party shall use the other party’s trademarks, service marks, logos or brand names in connection with this Agreement or the Services without the other party’s prior written consent.
5.0 RISK MANAGEMENT
5.1 Indemnity. Client agrees to indemnify, hold harmless, and, upon Mash's request, defend Mash and the other Mash Parties from and against all third party claims, actions and demands, and all resulting liabilities, damages and losses of any type, expenses (including reasonable legal fees), settlements, or judgments suffered or incurred by such parties and that result from or arise out: (a) Mash’s authorized access to and use of any Client Data (including Client's failure to comply with all applicable laws, including any applicable data protection laws), Client Systems and any other Client materials in the performance of Mash’s obligations or otherwise contemplated hereunder; (b) Client’s use of the Software and Services (but exclusive of any claim or action to the extent attributable to Mash’s breach of this Agreement); and (c) a breach of the Agreement by Client. The foregoing indemnity shall survive any termination or expiration of the Agreement.
5.2 No Other Warranties. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, THERE ARE NO OTHER REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS CONCERNING THE SOFTWARE, THE SERVICES (INCLUDING FUNCTIONALITY, PERFORMANCE, OPERATION OR USE BY CLIENT OR NON-INFRINGEMENT) AND ANY OTHER SERVICES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. MASH DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE (OR THAT ALL ERRORS CAN OR WILL BE CORRECTED) OR WILL MEET CLIENT’S REQUIREMENTS. ALL REPRESENTATIONS AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY DENIED AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. ANY THIRD-PARTY PRODUCTS AND SERVICES SUPPLIED OR UTILIZED ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND OR NATURE WHATSOEVER. CLIENT CONFIRMS THAT IT HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION, COVENANT OR PROMISE MADE BY MASH WHICH HAS NOT BEEN EXPRESSLY STATED IN THIS AGREEMENT.
5.3 No Indirect Damages. MASH SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF OR DAMAGE TO DATA, LOSS OF REVENUES OR PROFITS, LOSS OF OR DAMAGE TO GOODWILL OR REPUTATION, FAILURE TO REALIZE SAVINGS, BUSINESS INTERRUPTION OR ANY OTHER CONSEQUENTIAL ECONOMIC LOSS OF ANY KIND OR NATURE WHATSOEVER SUFFERED BY CLIENT OR ANY THIRD PARTY HOWSOEVER CAUSED (WHETHER RESULTING FROM IMPAIRED OR LOST DATA, DATA BREACHES, SOFTWARE OR COMPUTER FAILURE, SUPPORT FAILURE, OR ANY OTHER CAUSE) AND REGARDLESS OF THE FORM OR CAUSE OF ACTION, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR MASH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MASH IS NOT LIABLE TO CLIENT FOR ANY LOSS OR DAMAGES SUFFERED BY CLIENT IN CONNECTION WITH ANY ACT OR OMISSION OR FAILURE BY THE HOSTING PROVIDER. THE EXCLUSION OF DAMAGES IN THIS SECTION 5.3 APPLIES REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE).
5.4 Limitation of Liability. MASH’S TOTAL AGGREGATE LIABILITY AND OBLIGATION TO CLIENT FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, SERVICES AND THIS AGREEMENT, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED AND SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CLIENT HEREUNDER FOR THE SERVICES DURING THE SIX (6) MONTHS PRECEDING THE MOST RECENT CLAIM.
5.5 Acknowledgement and Time Limitation. EACH PARTY AGREES THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS SECTION 5.0 ARE REASONABLE BASED UPON THE COMMERCIAL CIRCUMSTANCES, AND WOULD NOT HAVE ENTERED INTO THE AGREEMENT BUT FOR THE LIMITATIONS CONTAINED HEREIN. NEITHER PARTY WILL NOT BRING A LEGAL ACTION, REGARDLESS OF FORM, FOR ANY CLAIM ARISING UNDER THIS AGREEMENT MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION AROSE, AND UPON THE EXPIRATION OF SUCH TIME LIMIT, ANY SUCH CLAIM AND ALL RESPECTIVE RIGHTS RELATED TO THE CLAIM SHALL LAPSE.
6.0 TERMINATION
6.1 Termination. Without limiting a party’s rights to terminate an Order Form that may be specified in such Order Form or in the Supplemental Terms:
(a) a party may terminate these Terms (including, for greater certainty all Order Forms) immediately upon notice to the other Party if: (i) such other Party is in material breach of this Agreement and has failed to cure such breach within thirty (30) days after receipt of written notice thereof or; (ii) such other Party becomes the subject of bankruptcy, insolvency, reorganization, receivership or other similar proceedings.
(b) without limiting Mash’s rights under Section 6.1(a), Mash may terminate this Agreement (including, for greater certainty, all Order Forms) immediately upon notice to Client if Client has failed to pay any amount payable under this Agreement when due, and such amount remains unpaid fifteen (15) days after Client’s receipt of notice from Mash that such amount has not been paid.
6.2 Effects of Termination.
(a) On termination of these Terms, all Order Forms and Services provided thereunder shall be deemed to be terminated. On termination of an Order Form, the Services provided under such Order Form will be terminated but other Order Forms then in existence will not automatically terminate, unless otherwise agreed by the parties.
(b) Upon any termination of the Agreement or an Order Form: (i) Client shall be responsible to pay Mash for all outstanding Fees due and not yet paid; (ii) Mash shall cease making available, and Client shall cease all use of, the Services ; and (iii) each party shall return to the other party, or at the direction of the other party destroy, within thirty (30) calendar days of the termination date all Confidential Information of the other party. Notwithstanding the foregoing, the parties hereto agree that, to the extent that electronic records containing Confidential Information are retained as data or records for the purposes of backup, recovery, contingency planning or business continuity planning or are otherwise not accessible in the ordinary course of business, such data or records, to the extent not otherwise permanently deleted or overwritten in the ordinary course of business, shall not be accessed except as required for backup, recovery, contingency planning or business continuity purposes and, if restored or otherwise become accessible, will be permanently deleted forthwith. Any such Confidential Information held by a party will remain subject to the terms hereof. Client acknowledges and agrees that: (y) it is the sole responsibility of Client to download its Client Data from a Service prior to termination of the Service; and (z) Mash has no responsibility to store, and may delete, Client Data in connection with a Service after the effective date of termination of such Service.
7.0 GENERAL
7.1 Entire Agreement. The Agreement constitutes the entire agreement between the parties hereto pertaining to all the matters herein and supersedes all prior agreements, proposals, understandings, letters of intent, negotiations and discussions between the parties hereto, whether oral or written.
7.2 Amendment. Other than Supplemental Terms which may be amended or modified in Mash’s sole discretion without notice, this Agreement may only be amended by the written agreement of both parties.
7.3 Notice. All notices or approvals required or permitted under the Agreement must be in writing and delivered by email transmission, overnight delivery service, or registered mail to the email addresses or physical addresses set out in the Order Form, or to any other address of which a party may notify the other party in writing from time to time. Notice by overnight delivery services or registered mail shall be deemed given on the date of receipt. Notice by email shall be effective on the date sent, unless (a) the sender has received an error or similar message in respect thereof, in which case the notice is not effective; or (b) the email was sent later than 5 p.m. Toronto time, in which case the email notice is effective on the immediately following Business Day.
7.4 Language. It is the express wish of the parties hereto that the Agreement be drawn up in English. La volonté expresse des parties aux présentes est que ce Agreement soit rédigé en anglais. The parties hereto hereby waive any right to use and rely upon any other language.
7.5 Jurisdiction. The Agreement shall be exclusively governed by, construed and interpreted in accordance with the laws of the Province of Ontario, Canada. For the purpose of all legal proceedings, the Agreement shall be deemed to have been performed in the Province of Ontario, Canada and the parties hereto expressly confirm that the law of the Province of Ontario is the proper law. The parties hereto irrevocably attorn to the exclusive jurisdiction of the Courts of the Province of Ontario in respect of all matters and disputes arising hereunder.
7.6 Assignment and Delegation. The Agreement shall be binding upon and shall enure to the benefit of and be enforceable by each of the parties hereto, their respective successors and permitted assigns. Client may not assign all or any part of the Agreement without the prior consent of Mash, which consent will not be unreasonably withheld. Mash may assign the Agreement without the consent of Client at any time. Mash may subcontract the performance of its obligations hereunder to any person without the prior written consent of Client provided that Mash shall remain responsible for all such subcontractors to the extent provided herein.
7.7 Independent Contractor. It is expressly understood and agreed that each party shall be acting as an independent contractor in performing its obligations hereunder and shall not be considered or deemed to be an agent, employee, joint venturer or partner of the other party. Neither party by virtue of the Agreement shall have any right, power or authority, express or implied, to act on behalf of or enter into any undertaking binding the other party. Each party hereby covenants to pay, at its expense, and agrees to indemnify the other against, all income taxes, unemployment insurance premiums, pension plan premiums, workers’ compensation contributions, and all other taxes, charges and contributions which competent government authorities levy or require to be paid on behalf of its personnel.
7.8 Equitable Relief. Nothing in this Agreement shall, or shall be construed to, delay, limit or preclude a party from seeking, on notice or ex parte, equitable relief from a court of competent jurisdiction at any time.
7.9 Exclusivity. The relationship hereunder is non-exclusive. Nothing in the Agreement shall prevent Mash from providing any services to any other person or Client from procuring services from another person.
3.4 Compliance with Laws. Each party agrees to fully comply with all laws applicable to their respective obligations pursuant to the Agreement. Client acknowledges that Mash is providing the Services for Client’s use in the support or conduct of its business and that Client, and not Mash, is solely responsible to ensure that Client’s use of the Services is in compliance with all applicable laws.
7.10 Waiver. No delay or omission by a party to exercise any right or power it has under the Agreement or to object to the failure of any covenant of the other party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.
7.11 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of the Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of the Agreement shall be valid and enforceable to the extent granted by law.
7.12 Force Majeure. Neither party shall be liable for delays in or for failures to perform hereunder due to causes beyond its reasonable control, including acts of God, acts or omissions of the other party or a third party, third party product or service failures, Internet or telecommunications outages, acts of civil or military authorities, fire, strikes, power, surges or outages, epidemics, flood, earthquakes, riot, or war (Force Majeure Event). Each party shall use commercially reasonable efforts to provide the other party with notice of any such events.
7.13 Counterparts. The Agreement may be executed in one or more counterparts, including by electronic or facsimile transmission, each of which when executed shall be deemed to be an original and all of which, taken together, shall constitute one and the same agreement.
7.14 Currency. All amounts referred to in the Agreement are expressed in United States Dollars, unless expressed otherwise in the Order Form.
7.15 Further Assurances. Each of the parties hereto shall promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party hereto may reasonably require from time to time during the term of the Agreement or thereafter for the purpose of giving full effect to the terms of the Agreement.
7.16 Public Announcements. All media releases, public announcements and public disclosures by either party relating to this Agreement (but not including any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of such party) shall be coordinated with and be approved in writing by the other party prior to the release thereof. Notwithstanding the foregoing and other terms herein, Mash shall be permitted to disclose, without consent of Client, in its marketing, promotional or other similar materials and on its website and orally, the fact that Client is a customer of Mash and the general nature of the relationship between the parties hereto.
7.17 No Third Party Beneficiaries. Other than Section 5.1 with respect to the Mash Parties, the Agreement is solely for the benefit of the parties hereto, and nothing in the Agreement will be deemed to create any third party beneficiary rights in any person or entity not a party to the Agreement
7.18 Paramountcy. In the event of a conflict between the terms and conditions of these Standard Terms, any Order Form, and any Supplemental Terms, the order of precedence, listed in descending (i.e., highest to lowest) order of priority, is as follows: (i) first, the Order Form, but only with respect to the Services provided under that Order Form and not with respect to other Order Forms made hereunder; (ii) second, the Supplemental Terms, but only with respect to the Services governed by such Supplemental Terms; and (iii) third, the Standard Terms. For the avoidance of doubt, a conflict shall only exist where compliance with two provisions is impossible or commercially impracticable.
7.19 Interpretation. In the Agreement: (a) words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (b) all usage of the words “including” or “include” or the phrase “e.g.” in this Agreement shall mean “including, without limitation”; (c) any reference to a statute shall mean the statute in force as at the date hereof, together with all regulations promulgated thereunder, as the same may be amended, re-enacted, consolidated and/or replaced from time to time, and any successor statute thereto, unless otherwise expressly provided; (d) the division of each Agreement into separate Articles, Sections, Subsections and Schedule(s) and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement; (e) words or abbreviations which have well-known or trade meanings are used herein in accordance with their recognized meanings; (f) if any payment is required to be made or other action is required to be taken pursuant to this Agreement on a day which is not a Business Day, then such payment or action, as the case may be, shall be made or taken on the next Business Day; and (g) the terms and conditions hereof are the result of negotiations between the parties hereto and the parties hereto agree that the Agreement shall not be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of the Agreement.
7.20 Survival. The provisions of Articles 4.0 and 5.0 and Sections 2.9, 2.10, 2.11, 2.12, 6.2, 7.1, 7.4 7.5, 7.7, 7.8, 7.12, 7.14, 7.18, 7.19, 7.20, 7.21, 7.22 and all terms related to payment (until payments have been made in full) and any other terms herein which expressly state that such terms will survive or are necessary to survive to give effect to the surviving terms, shall survive the termination or expiration of all or any part of the Agreement for any reason.
7.21 Definitions.
Authorized User means an individual who is authorized hereunder to use the Services and is limited to Client’s employees and independent contractors engaged by Client to supplement its workforce, unless and to the extent otherwise provided in applicable Supplemental Terms.
Mash Data means (a) Client Data that has been aggregated and/or anonymized by or on behalf of Mash and has had all personal information and all identifying information of Client and its customers removed such that the data is not attributable to Client, its customers, or any individual natural person; and (b) Usage Data.
Mash Parties means Mash, its affiliates and their service providers, and such persons’ respective directors, officers, employees, shareholders and agents.
Business Day means any day except Saturday, Sunday or any statutory or other holiday observed by Mash.
Client Data means all data transmitted, supplied or provided by, input into, imported or uploaded to the Services by Client and its customers, including any such data uploaded, imported or transmitted into the Services via Client’s Third Party Products.
Client Systems means all hardware, software, systems, other equipment, technology, intellectual property and similar items provided by or accessed by or used by Mash or otherwise made available to Mash by Client in connection with Mash’s performance of the Agreement.
Confidential Information means any information, data and materials (regardless of form) disclosed, made available or otherwise provided by or on behalf of one party (Disclosing party) to the other party (Receiving party) hereunder that: (a) is marked as confidential or proprietary or in a similar fashion at the time of disclosure, or if disclosed orally, is stated to be confidential at the time of disclosure, or (b) that the Receiving party could reasonably conclude to be confidential to the Disclosing party. Mash Confidential Information includes the Software and all Services pricing information. Client Confidential Information includes any Client Data (but, for greater certainty, does not include Mash Data).
Contributions means feedback, ideas, comments, and suggestions submitted by Client to Mash concerning the Services.
Disclosing party has the meaning given to it in the definition of Confidential Information.
Effective Date means, for each Order Form, the effective date of the Order Form as specified therein.
Fees means the fees for the Services specified on an Order Form, as such Fees may be increased by Mash in accordance with Section 3.5.
Force Majeure Event has the meaning given to it in Section 7.13.
Hosting Provider means the third party hosting provider contracted by Mash to make available to Mash servers on which to host the Software and provides to Mash certain other hosting services (including data storage), and includes any additional third parties to whom the Hosting Provider further subcontracts elements of its responsibilities to.
Initial Term has the meaning given to it in Section 1.3.
Malicious Code means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
Order Form means any order form between Mash and Client that references the Agreement pursuant to which Client orders Services, which Order Forms shall be incorporated into and form part of the Agreement.
Receiving party has the meaning given to it in the definition of Confidential Information.
Renewal Term has the meaning given to it in Section 1.3.
Services means the services being provide by Mash to Client under any Order Form then in effect.
Software means the software used by Mash to provide the Services, including any and all changes, modifications, improvements, enhancements, additions, new features or functionality.
Supplemental Terms means specific terms and conditions for a particular Service, as identified in the Order Form under which the Service with service-specific terms and conditions is ordered.
Support Policy has the meaning given to it in Section 2.1.
Term has the meaning given to it in Section 1.3.
Third Party Products has the meaning given to it in Section 2.2.
Usage Data means all metadata and navigational, transactional, computer (e.g., IP address and browser), statistical, analytical, and similar data collected, generated, or derived from the use of the Services by Client, including the data, documents, service tickets, and other information submitted or provided by or on behalf of the Client through the use of maintenance and help desk services and implementation services, and any and all corresponding service orders, requests for services and tickets and any log files, event files and other trace and diagnostic files.