STANDARD TERMS AND CONDITIONS FOR SOFTWARE AND SERVICES
These terms and conditions (“Agreement”) shall govern the provision of products and services to you by MAJiK Systems Inc. (“MAJiK”), together with the terms of an agreed upon Quote (as defined below). BY USING THE SOFTWARE AND/OR SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. If you have any questions or concerns about the terms of this Agreement, please contact us at support@majik.io.
1 Definitions
1.1 “Access Information” has the definition as set forth in Section 2.3 below.
1.2 “Customized Services” shall mean the services to be provided by MAJiK that are specific to and/or customized for you, as set forth in the Quote (which may include customized UI development, implementation, installation and set-up of the Software), and performed in accordance with this Agreement.
1.3 “Deliverables” means any material to be delivered to you by MAJiK under this Agreement in the course of, or as a result of, performing the Services, unless such material is specifically identified in the Quote as not being a Deliverable.
1.4 “Equipment” means your specific equipment to be monitored by, or otherwise used in conjunction with, the Software.
1.5 "Location” means the location, if any, set forth in the Quote; where no location is specified, the location is deemed to be the location where the Equipment is located at the time that the Quote is executed.
1.6 “Quote” means the quote to which this Agreement is attached, which forms an integral part of this Agreement.
1.7 “Services” means the services as defined in Section 2.1 below.
1.8 “Software” means the software set forth in the Quote (including MAJiK Connect’s Operations Management Tools and other systems monitoring software), and any copies or modifications thereto or thereof, in whole or in part, together with all documentation associated with such software provided to you by MAJiK.
1.9 “Updates” means software releases from MAJiK, identified by MAJiK as updates, which supplement a version of Software that you have in your possession and that may correct defects, bugs or programming errors in such version of Software or provide minor increases in functionality for such version of Software.
1.10 “Upgrades” means software releases from MAJiK, identified by MAJiK as upgrades, which replace a version of Software that you have in your possession with a newer version of such Software.
1.11 “User” means a user of the Software, including any employees or contractors acting within the scope of their employment with you, using the Software in the regular course of your business, and not for the purposes of development or further distribution of the Software, including without limitation by resale or sublicensing.
1.12 “You” or “you” means the entity executing the Quote and/or otherwise agreeing to the terms of this Agreement.
2 The Services
2.1 MAJiK will provide you, through the Software, with the ability to capture and collect live data from the Equipment described in the Quote, enabling you to track performance from a web browser or a mobile application, as described in the Quote (the “Services”). The Services are provided subject to the terms and conditions of this Agreement.
2.2 In order to use the Services, you must:
(a) provide up-to-date, complete and accurate registration information as requested by MAJiK, which may
include your name, mailing address, phone number and email address;
(b) where paying by credit card, provide up-to-date, complete and accurate credit card information for a credit
card that is valid and legally registered to you or your authorized representative; and
(c) be at all times in compliance with the terms and conditions of this Agreement and applicable law.
You specifically agree that MAJiK may rely on the accuracy of the information provided by you to MAJiK, and that MAJiK will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to MAJiK.
2.3 MAJiK will provide you with certain information to allow you to use the Services, such as one or more user IDs and passwords and/or the ability to create user IDs and/or passwords (the “Access Information”) for Users. The Access Information is provided on the understanding that it is personal to you and your Users; you will not permit anyone other than your authorized Users to obtain access to the Services using the Access Information. MAJiK is not responsible or liable in any way for any use of the Services (authorized or unauthorized) by any party accessing the Services using your Access Information, and you accept all responsibility for such use of the Services and any consequences resulting from such use of the Services.
2.4 MAJiK reserves the right to change, limit, suspend or discontinue the Services at any time, including the availability of any feature or content or User access, without liability, provided that MAJiK will make reasonable efforts to minimize the effect of such changes, suspension, limitations or discontinuance on your use of the Services except where they are required due to your acts or omissions, or due to legal, governmental or technical issues outside of MAJiK’s reasonable control. Where feasible, MAJiK will provide you with reasonable advance notice of such changes, suspension, limitations or discontinuance; however, you acknowledge that such notice may not be feasible in all circumstances, and that MAJiK shall have no liability whatsoever for its failure to provide such notice to you.
2.5 You acknowledge and agree that an integral part of the Services entails the collection of information and data from your Equipment, and the processing of such information and data by MAJiK. Nothing herein transfers any ownership of such information and data to MAJiK; however, you grant MAJiK a license to use such information and data solely to provide you with the Services. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING ALL RELEVANT PERMISSIONS FOR MAJIK TO COLLECT SUCH INFORMATION AND DATA, WHERE SUCH INFORMATION AND DATA IS OWNED BY, OR OTHERWISE RELEVANT TO, ANY THIRD PARTIES. MAJIK WILL HAVE NO LIABILITY WHATSOEVER RESPECTING ANY CLAIM BY ANY THIRD PARTY WHOSE INFORMATION AND DATA ARE COLLECTED IN YOUR USE OF THE SERVICES, WHETHER RELATED TO CONFIDENTIALITY, PRIVACY OR OTHERWISE, IN RELATION TO MAJIK’S USE OF SUCH INFORMATION TO PROVIDE THE SERVICES, AND YOU AGREE TO INDEMNIFY, DEFEND AND HOLD MAJIK HARMLESS AGAINST ANY SUCH CLAIMS.
2.6 You agree that:
(a)The Software and Services will be used only by Users with the specific Equipment and in the specific
Locations agreed upon in the Quote;
(b)You will not permit anyone other than authorized Users to obtain access to the Services through your Access
Information, and will only use the Software, Services, Deliverables and Customized Services in accordance
with this Agreement and applicable law;
(c)You will ensure that all your employees and contractors that use the Services and have access to the
Software comply with the terms and conditions of this Agreement, and you shall be vicariously liable for the
acts or omissions of such employees and contractors with respect to the Services and Software;
(d)You will not use the Services to provide commercial services to, or for the benefit of, any third party, including by reselling, remarketing, transferring or time-sharing the Services or receiving any charge or other benefit
for the use of the Services;
(e)You will ensure that your use of the Services does not interfere with, degrade, or adversely affect any
software, system, network or data used by any person including MAJiK and other users of the Services;
(f) You will not in any way use the Services to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts, including any infringement of intellectual property rights, any
fraudulent activities, any deceptive impersonation, or any activities that violate any third party’s rights; (g)You will not interfere with or in any manner compromise any of MAJiK’ security measures;
(h)You will cooperate with MAJiK and provide information requested by MAJiK to assist MAJiK and/or relevant
authorities in investigating or determining whether there has been a breach of this Agreement or applicable law.
2.7 You are solely responsible for the selection, implementation, installation, maintenance and performance of any and all Equipment, software and services used in conjunction with using the Software and Services (except for MAJiK’s computer systems and networks), including without limitation your internal network infrastructure and selection of Internet Service Providers.
2.8 You acknowledge and agree that MAJiK cannot guarantee data integrity, and that it is solely your responsibility to back up any of your information and data that you use in conjunction with the Services
2.9 You acknowledge and agree that MAJiK will exercise no control over your use of the Services, and that you are solely responsible for any Equipment used in conjunction with the Services and for any information or data communicated through the Services. Notwithstanding the foregoing, MAJiK reserves the right to review any material stored in files or programs on MAJiK’s servers, and has the right to edit or remove any material that, in its sole discretion, believes may be unlawful or otherwise objectionable. MAJiK reserves the right to revoke service for any fraudulent use of the Services and to cease the Services, temporarily or permanently, in the event that your use of the Services or the provision of the Services constitutes, in MAJiK’s reasonable judgment, a threat to MAJiK’s or any third party’s computer systems, networks, files, materials or other data.
2.10 You agree to promptly and accurately report to MAJiK any actual or apparent errors, problems, nonconformities or other difficulties in Services, along with any other information reasonably requested by MAJiK to aid in resolving such errors, problems, nonconformities or other difficulties, and hereby consents to the collection, processing, transmission and disclosure of such information by MAJiK for the purposes of MAJiK’s internal use to improve the Services, Software or other MAJiK products or services.
2.11 You agree that any suggestions, bug reports or other communications respecting the functionality of the Software or Services (including without limitation your Equipment downtime history and parts lists) that you transmit to MAJiK by any means, including by direct input to the Services or Software or by automatic collection through the Services, Software, smart sensors or other corporate systems (each, a "Submission"), is considered non-confidential and may be disseminated or used by MAJiK or any third party without compensation or liability to you for any purpose whatsoever. You hereby grant MAJiK a perpetual, worldwide, non-exclusive, royalty- free, sublicensable and transferable license to use, copy, distribute, transmit, modify, develop, prepare derivative works of any Submission on, through or in connection with the Services, for promoting, improving and developing the Services and Software. MAJiK may also combine Submissions, in an anonymized form, with aggregated information from the MAJiK databases of other Users, your usage history data, aggregated purchase history data from MAJiK, and other information obtained from affiliated third parties, and use it to: (i) create features, functionality, or content for you in the Services or Software, (ii) make available other products and/or services to you, (iii) benchmark your Services and/or activities and (iv) provide recommendations to you or others regarding products and services. This provision does not apply to data transmitted through the Services or to personal information that is subject to MAJiK’s Privacy Policy.
2.12 You specifically acknowledge that neither the Software nor the Services are developed, or licensed for use in any inherently dangerous, time-sensitive or mission critical applications. You agree that MAJiK shall not be liable for any claims or damages arising from such use if you use the Software or Services for such applications. You agree to hold MAJiK harmless from any claims for losses, costs, damages, or liability arising out of or in connection with the use of the Software or Services for such applications.
3 License Grant
3.1 MAJiK hereby grants to you a personal, non-exclusive, revocable, non-transferable license to use the Software internally, solely as a User for the purposes of accessing the Services and in accordance with the terms set forth in this Agreement and any user documentation accompanying the Software. Nothing herein shall grant you any right to the source code for the Software.
3.2 You shall not:
(a) copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate,
decrypt, reverse compile or convert into human readable form the Software or any part thereof;
(b) remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Software
(including without limitation any copyright notice or other notice of intellectual property ownership);
(c) distribute,assign,license,sublicense,lease,rent,transfer,sellorotherwiseprovideaccesstotheSoftware,
in whole or in part, to any third party on a temporary or permanent basis;
(d) copyanywrittenmaterialsaccompanyinganyportionoftheSoftwareunlessspecificallyauthorizedinwriting
to do so by MAJiK;
(e) use the Software in any way inconsistent with the use parameters for the Services;
(f) attempt to hack the Software or any communication initiated by the Software or to defeat or overcome any encryption and/or other technical protection methods implemented by MAJiK with respect to the Software
and/or data and/or content transmitted, processed or stored by MAJiK or other Users of the Services;
(g) collect any information or communication about the Users of the Services or Software by monitoring, interdicting or intercepting any process of or communication initiated by the Software or Services or by developing or using any software or any other process or method that engages or assists in engaging in
any of the foregoing;
(h) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-
sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access to the Services or any computer system or that are designed to monitor, distort, delete, damage or disassemble the Software or its ability to communicate and perform the Services; or
(i) authorize, permit or otherwise acquiesce in any other party engaging in the activities set forth in (a)-(h) above, or attempting to do so.
For greater certainty, nothing herein shall give you the right to use the Software, Services (including support services and materials obtained through the support services) or Deliverables, or associated documentation in any way related to developing a product that is competitive with the Software.
4 MAJiK Customized Services and Deliverables
4.1 Where Customized Services are set forth in the Quote, MAJiK shall perform the Customized Services, and you shall pay MAJiK for the Customized Services, in accordance with the terms and conditions set forth in this Agreement and the Quote. Any Deliverables and specific conditions respecting the Customized Services shall be as set forth in the Quote.
4.2 Unless expressly stated in the Quote, ownership of all Deliverables and the intellectual property rights thereto shall remain with MAJiK, and any software Deliverables shall be subject to the license set forth in this Agreement. Where ownership of Deliverables is to be transferred to you, in accordance with the Quote, title to such Deliverables shall pass to you upon full payment by you for such Deliverables, as described in Section 9 herein.
4.3 The Customized Services and Deliverables shall be subject to acceptance by you in accordance with the acceptance criteria set forth in the Quote or otherwise expressly agreed upon in writing by you and MAJiK. Where there is no such acceptance criteria agreed upon, acceptance of the Customized Services and Deliverables shall occur upon the earliest of: (a) delivery to you of the final Deliverables as set forth in the Quote, (b) completion of any installation of the Deliverables by you or by a third party on your behalf, or (c) your production or commercial use of the Deliverables. Notwithstanding the foregoing, if acceptance testing, delivery or installation completion is delayed by thirty (30) days or more for reasons not related to MAJiK’s performance, you agree to pay the value of any milestone that is contingent on acceptance. Such acceptance does not negate any warranty rights that you may have respecting the Deliverables as set forth herein. You are solely responsible for preparing your facilities and Equipment for installation of the Deliverables, where applicable.
4.4 Project delays not caused by MAJiK may result in additional costs or rescheduling of Deliverable dates and timelines, as mutually agreed upon by the Parties acting in good faith. Additionally, any alterations in timelines and delivery dates arising from such delays are dependent upon the availability of MAJiK resources, both human and equipment, and is also is dependent on your availability to provide input and to perform your responsibilities, and you acknowledge that the altered timelines and delivery dates may therefore not proportionally correspond with the length of the original delay. MAJiK shall not be liable in any way for any delay or damage arising from MAJiK’s failure to meet your requirements or any deadlines.
4.5 Any changes to the Customized Services must be mutually agreed upon by the Parties in writing. MAJiK reserves the right to make changes in the design of its standard products or services, including the Software, without the obligation to make equivalent changes to Deliverables, Software or other products or services that have previously been supplied to you.
4.6 If, pursuant to your request, MAJiK reviews drawings and documents prepared by others in connection with the Customized Services, including other consultants, contractors, or suppliers, MAJiK’s review of such drawings and documents shall be only to confirm general compliance with the intent of the design and information given, and shall not constitute acceptance by MAJiK of any responsibility for correctness of dimensions or details of such drawings and documentation. MAJiK shall be entitled to rely on all information provided by, and decisions and approvals of, you in connection with MAJiK’s work hereunder. You hereby release MAJiK and its personnel from any liability and costs relating to the Customized Services or Services hereunder to the extent such liability and costs are attributable to any information provided by you that is not complete, accurate or current in all material respects.
4.7 To the extent that any Deliverables are tangible Deliverables to be shipped to you, such Deliverables shall be shipped FCA MAJiK’s facilities in Waterloo, Ontario, Canada (Incoterms 2000). Risk of loss for such Deliverables shall pass to you upon delivery to the carrier. You therefore assume all responsibility for claims against the carrier for loss or damage.
5 Support, Maintenance and Training
5.1 If support and maintenance is not expressly purchased in the Quote, you must enter into a separate support and maintenance agreement with MAJiK in order to obtain Upgrades or Updates to the Software or any support for the Software (telephonic or otherwise) beyond MAJiK’s warranty obligations set forth herein.
5.2 In the event that you have purchased support and maintenance services in the Quote, between 9:00 a.m. to 5:00 p.m., Eastern Time, Monday to Friday, excluding Canadian statutory or national holidays (each a “Business Day”), conditional upon your payment of all applicable fees and subject to the monthly time limits set forth on MAJiK’s website, MAJiK will provide the following support and maintenance services:
Support
(a) Advice provided telephonically and by e-mail on the use and maintenance of the Software where such
Software is not operating in accordance with its specifications;
(b) Instruction provided telephonically and by e-mail on the use and maintenance of the Software where
such instructions are not included in the documentation accompanying the Software;
(c) Guidance on software failure diagnoses and suggestions for Software error correction provided
telephonically and by e-mail; and
(d) Commercially reasonable efforts to correct any defects in the Software which prevent the Software
from operating in accordance with its specifications, with a target response time of twenty-four (24)
hours and target resolution time of forty-eight (48) hours.
Maintenance
(a) Provision of standard Updates or Upgrades of the Software in effect during the period for which you are paying for maintenance; and
(b) Twenty-four (24) hours advanced notice for all planned service outages and automatic updates, such planned service outages and automatic updates to occur between the hours of 12:00AM and 5:00AM local time (the local time having been selected during service signup).
5.3 Except to the limited extent expressly specified in the Quote, the following services are specifically not included in the support services, and are subject to additional fees and a separate agreement with MAJiK, which may be refused at MAJiK’s sole discretion:
(a) support outside of the monthly time limits set forth on MAJiK’s website;
(b) installation of the Software;
(c) on-site support related to the Software; or (d) corrections of defects found by MAJiK to be:
(i) in other than a current, unaltered release of the Software provided free or charge to you;
(ii) caused by your negligence or by modifications made to the Software by you;
(iii) arise from use or interoperability of the Software in combination with hardware or software not
specifically approved by MAJiK;
(iv) caused by normal wear and tear;
(v) caused by improper or unauthorized use of the Software;
(vi) caused by use of the Services or Software in a manner contrary to, or otherwise not in
accordance with, documentation, guidelines or instructions provided by MAJiK;
(vii) due to external causes outside of MAJiK’s control, such as, but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving MAJiK Systems employees), Internet service provider failures or
delays, Internet outages, power failure or electrical power surges; or
(viii) defects which do not prevent the Software from operating in accordance with its specifications.
5.4 All Updates or Upgrades shall be treated as Software and subject to the terms and conditions of this Agreement. Support for out-of-production Software or Services will terminate six (6) months following the release of a new version of the Software or Service. If you request support, Updates or Upgrades for such out-of-production Software or Services, such request shall be subject to additional fees and the terms and conditions of a separate support agreement.
5.5 In no event shall MAJiK be obligated to customize or otherwise modify the Software to meet your requirements or those of any third party, including other Users, except to the limited extent specified in the Quote. Any extra customization shall be subject to the successful negotiation and execution of a separate written development agreement between MAJiK and you, and shall be in accordance with the terms and conditions of such agreement.
5.6 Except as expressly specified in the Quote, MAJiK will not be obligated to provide any training to you respecting the Services or Software, or any support respecting the Equipment or any third party equipment, software or materials.
6 Fees
6.1 You shall pay fees for the Software, Services (including any support and maintenance services), Customized Services and Deliverables as set forth in the Quote. Quoted prices are valid for a period of thirty (30) days from the date of the Quote. Fees are based on the items purchased or licensed in the Quote, and not actual usage. Payment obligations are non-cancellable and fees paid are non-refundable. MAJiK reserves the right to modify its fees, upon reasonable notice, which shall not be less than thirty (30) days prior to the applicability of such fees, for any term after the initial term set forth in the Quote. Unless otherwise agreed by you and MAJiK in writing, you must issue a purchase order corresponding with the quoted fees in the Quote, and MAJiK will invoice you pursuant to such purchase order; such purchase order shall solely be for the Parties’ convenience and confirmation of amounts due pursuant to the Quote, and no conflicting or additional terms contained in such purchase order shall apply. All amounts are in Canadian dollars unless otherwise specified.
6.2 Payment terms are Due on Receipt from the date of the applicable milestone acceptance or MAJiK’s invoice date, whichever is earlier. Payment shall be made in full and without deduction or set-off. If you fail to pay any amount due under this Agreement within ten (10) days of such payment becoming due and payable, in addition to any other rights and remedies available to MAJiK, MAJiK shall be entitled to charge interest on all outstanding amounts at the lesser of 3% per month or the maximum rate permitted by law, such interest commencing as of the due date for such payment. You shall also be responsible for paying for all reasonable fees and costs incurred by MAJiK, including legal fees, in collecting any overdue amounts or enforcing any provision of this Agreement.
6.3 Where you pay fees by means of a credit card, you authorize MAJiK to automatically charge you for any and all fees incurred by you for Services, Software and/or Customized Services. It is your responsibility to ensure that all pertinent billing and credit card information provided to MAJiK is up to date and accurate. If your credit card is rejected for any reason, you will be responsible for any fees and charges associated with such rejection. The foregoing shall not limit MAJiK’s ability to exercise any rights available to it in law or equity or otherwise under this Agreement respecting the collection of any amounts payable hereunder.
6.4 You are responsible for, and shall pay all taxes relating to this Agreement, excluding any taxes based on the net income of MAJiK. Unless otherwise indicated, all amounts payable by you under this Agreement are exclusive of any tax, duty, levy, or similar government charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, possession or use of the Software, the execution of this Agreement or otherwise. If you are required to withhold any taxes from payments owed under this Agreement, the amount of payment due shall automatically be increased to offset such tax, so that the amount actually remitted to MAJiK shall equal the amount invoiced or otherwise due.
7 Warranties
7.1 Each party warrants that:
(a) it has the full power to enter into this Agreement and to perform its obligations hereunder;
(b) it shall observe and comply with all applicable laws, ordinances, codes and regulations of governmental
agencies, including federal, provincial, state, municipal and local governing bodies, of any country having
jurisdiction over this Agreement or any part thereof;
(c) if access to the other party’s facilities and computer systems is provided to it, it shall take reasonable and
necessary precautions to protect the integrity of such party’s facilities and computer systems, including
without limitation, complying with any policies applicable thereto provided to it;
(d) its performance of its obligations under this Agreement shall not breach any other agreement entered into
by it; and
(e) it shall perform all of its obligations hereunder in a professional and competent manner, and in good faith.
7.2 EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THE SOFTWARE, SERVICES (INCLUDING SUPPORT SERVICES) AND DELIVERABLES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT , SECURITY OR ACCURACY . MAJIK ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, OMISSIONS, INACCURACIES OR DATA INTEGRITY WHATSOEVER IN THE INFORMATION PROVIDED THROUGH THE SERVICES OR SOFTWARE. UNDER NO CIRCUMSTANCES WILL MAJIK BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH USE OF THE SERVICES OR THE SOFTWARE, AND MAJIK SPECIFICALLY DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED, WITHOUT PACKET LOSS, OR ERROR-FREE. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ANY INFORMATION PROVIDED, AND USE OF THE SERVICES AND SOFTWARE IS SOLELY AT YOUR OWN RISK. MAJIK HAS NO SPECIAL RELATIONSHIP WITH OR FIDUCIARY DUTY TO YOU, AND YOU ACKNOWLEDGE THAT MAJIK HAS NO CONTROL OVER, AND NO DUTY TO TAKE ANY ACTION REGARDING ANY ACTS OR OMISSIONS TAKEN BY YOU OR ANY OTHER USER OF THE SERVICES, INCLUDING WITHOUT LIMITATION, HOW YOU OR ANY OTHER USER MAY INTERPRET OR USE MATERIALS ACCESSED OR DEVELOPED THROUGH THE SERVICES, OR WHAT ACTIONS YOU MAY TAKE AS A RESULT OF HAVING BEEN EXPOSED TO INFORMATION OBTAINED THROUGH THE SERVICES. Some jurisdictions do not allow the exclusion of certain warranties, so the above limitations or exclusions may not apply to you.
7.3 To the extent permitted by law, any implied warranties or conditions relating to the Software, Services (including support services), Customized Services and Deliverables to the extent that they cannot be excluded as set out herein are limited to ninety (90) days from the acceptance date, as set forth in Section 4.3. In no event shall any implied warranty apply to defects or non-conformities resulting from: (a) improper or inadequate maintenance or installation of the Software or Deliverables other than as performed by MAJiK, (b) use of the Software or Deliverables in combination with software, interfaces, or other materials that are not supplied or specifically authorized by MAJiK, (c) unauthorized or improper use or modification of the Software or Deliverables, including use that is not contemplated by the specifications provided by MAJiK to you, (d) abuse, negligence, accident, or other damage from external sources, (e) improper preparation of your facilities or equipment for installation and use of the Software or Deliverables, or (f) unauthorized maintenance or repair of the Software or Deliverables.
7.4 THE WARRANTY SET FORTH IN THIS SECTION 7 IS THE EXCLUSIVE WARRANTY MADE BY MAJIK TO YOU. MAJIK DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY , MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT, OR ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM OR USAGE OF TRADE RELATED TO THE MAJIK SOFTWARE AND SERVICES PROVIDED HEREUNDER. Some jurisdictions may not allow the exclusion or limitation of implied warranties and conditions.
8 Indemnity
8.1 Provided you are not in material breach of this Agreement, MAJiK agrees to defend and indemnify you against any third party claims, and any resulting judgments finally awarded by a court of competent jurisdiction, direct damages, costs (including reasonable lawyer’s fees and disbursements), and settlements agreed to by MAJiK, where such third party claims that use of the Services or Software in accordance with this Agreement either infringes or misappropriates any patents, copyrights, trademarks, trade names or trade secrets that are enforceable in the U.S. or Canada. Notwithstanding the foregoing, MAJiK shall have no indemnity obligation in relation to any matter for which you are obligated to indemnify MAJiK under this Agreement, or for any claim to the extent based on (a) the use of other than the latest release of the Software, (b) the use or combination of the Software with software, hardware, or other materials not provided or otherwise specifically authorized by MAJiK, (c) unauthorized modification of the Software, or (d) your breach of any of the terms and conditions of this Agreement. This Section 8.1 states the entire liability of MAJiK under this Agreement with respect to indemnification or liability for infringement of third party patents, copyrights, or other proprietary right by the Software or associated documentation or any part thereof or by their use or operation.

8.2 You agree to indemnify, defend and hold harmless MAJiK, its parents, subsidiaries, affiliates, officers and employees, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of: (a) your access to the Services, the Software, and any information and data communicated through the Services or Software, (b) your use or misuse of the Services and/or Software, (c) any breach of this Agreement by you, (d) the infringement by you, or any third party obtaining access to the Services through your Access Information, of any intellectual property or other right of any person or entity, or (e) your violation of any third-party rights or any applicable laws.
8.3 Each party’s indemnity obligations hereunder are contingent upon: (a) the indemnifying party promptly being notified in writing of such claim, (b) the indemnifying party having the sole control of the defense and/or settlement thereof, (c) the indemnified party furnishing to the indemnifying party on request any information in the indemnified party’s possession or control for such defense, (d) the indemnified party not admitting any such claim and/or making any payments with respect to such claim without the prior written consent of the indemnifying party, and (e) the indemnified party, at the indemnifying party’s expense, cooperating with, and providing such assistance to the indemnifying party in the defense of such claims as reasonably requested by the indemnifying party.
9 Limitation of Liability
9.1 In no event will MAJiK be liable under this Agreement for any damages other than your direct damages to the extent arising from MAJiK’s gross negligence or willful misconduct, and in no event shall MAJiK’s aggregate liability exceed the amounts paid by you to MAJiK for the affected Services or Software under the applicable Quote. No claim may be brought against MAJiK, whether in contract, tort or otherwise, more than two (2) years after the Software or Deliverables were delivered and Services were completed or terminated under this agreement.
9.2 EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED IN THIS SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MAJIK BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, DATA, USE OR OPPORTUNITY, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND WHETHER OR NOT MAJIK WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, MAJIK SHALL ONLY BE LIABLE TO YOU AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND SHALL HAVE NO OTHER OBLIGATION, DUTY OR LIABILITY TO YOU.
9.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR ACTION BY YOU, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL THEORY.
10 Intellectual Property Rights
10.1 The Software, Services and Deliverables are owned by MAJiK, who retains all right, title and interest therein, and is protected by Canadian, U.S. and international copyright and/or other intellectual property laws. You must, therefore, treat the Software, Deliverables and materials obtained from MAJiK through the Services (including support services) like any other copyrighted material. In addition, other intellectual property laws (including patent laws) and treaties may protect the Software. Nothing herein shall be construed as constituting a sale of the Software or any portion thereof to you.
10.2 Notwithstanding the foregoing, you acknowledge that the Software may include or utilize certain software licensed from third parties, and which is subject to the terms and conditions of such third party licenses. Ownership of copyright and other intellectual property and proprietary rights in and to such software are as set forth in such third party licenses. The text of, and links to, the applicable license terms may be obtained upon request to MAJiK; however, any such documentation is provided solely for your convenience, and MAJiK disclaims any responsibility for the currency or accuracy of such text or links. It is solely your responsibility to ensure that you comply with the version of the applicable third party license in effect as of the date of your use of the Software. Such third party license terms apply only to the specific third party code included with the Software; such terms and conditions do not apply to any other portions of the Software provided hereunder to you, and the terms and conditions of this Agreement shall govern all other portions of the Software provided hereunder to you. MAJiK is not responsible for the contents of any such third party software, including without limitation the accuracy, copyright compliance, legality, or any other aspect of such software, and shall not be obligated to support such third party software. To the best of MAJiK’s knowledge, after a review of the third party license agreements relating to such third party software in effect as of MAJiK’s development of the Software, such third party code may be used by you as set forth in this Agreement, subject to the applicable third party license terms; however, it is solely your responsibility to verify the legality of your usage.
10.3 Your only rights to the Software, Services, Deliverables and any part thereof shall be those rights expressly licensed or granted to you under this Agreement. Otherwise, you do not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Software or any part thereof. Any rights not expressly granted under this Agreement are reserved. For greater certainty, nothing herein shall be deemed to transfer any intellectual property or other ownership rights in and to the Deliverables to you, except to the limited extent expressly stated in the Quote.
11 Confidential Information
11.1 The terms and conditions of the Non-Disclosure Agreement entered into between the Parties shall apply to all confidential information disclosed pursuant to this Agreement. Without limiting the foregoing, each party agrees not to disclose any confidential information of the other party to any third party without prior written permission of the other party, and to protect all confidential information disclosed by the other party using no less than reasonable care, until and unless such information becomes public through no fault of the party receiving the confidential information.
12 Term and Termination
12.1 The term of this Agreement in relation to any Quote shall be as set forth in the Quote, or, if no term is set forth therein, shall be one (1) year from the earlier of the date that the Quote is accepted (as evidenced by your signature on the Quote) or the date that you issue a purchase order pursuant to the Quote, which shall be deemed acceptance of this Agreement. This Agreement as it pertains to such Quote shall automatically renew thereafter on an annual basis upon the same terms and conditions as set forth herein, unless sooner terminated in accordance with this Section 12, provided that you pay the applicable annual fees for the renewal term within thirty (30) days after the expiry of the initial term.
12.2 MAJiK may terminate this Agreement and/or immediately cease to provide the Services without any liability whatsoever if MAJiK is prevented from providing any portion or all of any Services due to the acts or omissions of you or any third party, or by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body. Nothing herein shall be construed to require MAJiK to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order.
12.3 You may terminate this Agreement and/or any support and maintenance services purchased under a Quote upon providing MAJiK with written notice of your intention to terminate this Agreement or such services equal to your payment period plus ninety (90) days.
12.4 Without limiting other remedies, MAJiK may limit your activity, issue a warning, temporarily suspend, indefinitely suspend or terminate your account, and/or refuse to provide Services to you if: (a) you breach this Agreement; (b) MAJiK is unable to verify or authenticate any information you provide; or (c) MAJiK believes that your actions may cause financial loss or legal liability for you, other users or MAJiK. MAJiK reserves the right to investigate suspected violations of this Agreement. You hereby authorize MAJiK to cooperate with (1) law enforcement authorities in the investigation of suspected criminal violations and (2) system administrators at Internet service providers, networks or computing facilities, and other content providers in order to enforce the terms and conditions of this Agreement. The above-described actions are not MAJiK’s exclusive remedies and MAJiK may take any other legal, equitable or technical action it deems appropriate in the circumstances.
12.5 Termination of this Agreement for any reason shall not affect your payment obligation for any fees accruing hereunder or payments owing prior to the date of termination, and for greater certainty, you shall not be entitled to any refund of any prepaid amounts, and you will continue to be responsible for paying all remaining amounts for Services and Software for the term to which you committed in the Quote, and any applicable committed renewal term. Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.
12.6 Except as otherwise expressly set forth in this Agreement, upon any expiration or termination of this Agreement, you will cease all use of the Software and Services and destroy and/or permanently delete all copies of the Software in your possession. Upon termination of this Agreement for your breach or insolvency: (a) all of MAJiK’s performance obligations hereunder shall immediately cease, (b) your license to use any Software hereunder shall immediately cease, and you shall either return all such Software to MAJiK or have an officer of your company certify that such Software has been destroyed, and (c) any payments then due to MAJiK become immediately payable in full.
12.7 Nothing herein shall be deemed to waive or be a substitution for any other rights and remedies that MAJiK may have in law or equity, and MAJiK shall have no liability to you arising from MAJiK’s termination of this Agreement in accordance with this Section 12.
13 Injunctive Relief
13.1 You agree that MAJiK will have the right to seek, in addition to any of its other rights and remedies under law and equity, injunctive relief for any violation of these terms and conditions without posting bond or by posting bond at the lowest amount required by law, as the Software is of significant commercial value to MAJiK and inappropriate use of the Software could cause MAJiK irreparable harm. Should you become aware of any activities by any third party contrary to these terms and conditions, you will promptly notify MAJiK and shall reasonably assist MAJiK to enforce its rights against such third party.
14 General
14.1 Publicity: MAJiK reserves the right to refer to you as a customer in announcements, press or marketing releases, publications (including on MAJiK’s website), presentations and other public statements (“Publicity”) the existence of this Agreement, and the Software and Services provided to you hereunder, without your prior written approval, provided that MAJiK does not disclose your confidential information in the course of such Publicity in contravention of its confidentiality obligations hereunder, or misrepresent you in such Publicity. MAJiK shall have the right to utilize your name, logo and trademarks in conjunction with such Publicity. MAJiK may request you to provide a testimonial but it will only be used with your written consent.
14.2 Commercial Electronic Messages: By agreeing to the terms of this Agreement, you are expressly providing your consent for MAJiK to send you MAJiK publications, event invitations, news, product offerings, announcements and other communications about our products and services via our in-application marketplace, in-application notifications, or to your e-mail address.
14.3 Force majeure: Neither party shall be deemed to be in default of this Agreement for failure to fulfill its obligations due to causes beyond its reasonable control. This provision shall not be construed as excusing any payment obligations of either party hereunder.
14.4 Notices: Any notices, reports or other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered by hand or sent by registered mail, courier or facsimile addressed to MAJiK or you at their respective addresses set forth herein, or to such other address as one party advises the other party in writing. Any such notices, reports, or other communications shall be deemed to have been received by the party to whom they were addressed: (a) upon delivery by hand, (b) five (5) business days after being sent by registered mail, (c) upon delivery by courier, as evidenced by the courier receipt, or (d) upon successful receipt confirmation report after being sent by facsimile.
14.5 No Waiver: No waiver by either party of a breach or omission by the other party under this Agreement shall be binding on the waiving party unless it is expressly made in writing and signed by the waiving party. Any waiver by a party of a particular breach or omission by the other party shall not affect or impair the rights of the waiving party in respect of any subsequent breach or omission of the same or different kind.
14.6 Assignment and Subcontracting: MAJiK may subcontract any of its obligations under this Agreement without first obtaining your prior written consent, provided that MAJiK obligates such subcontractor in writing to comply with all terms and conditions contained herein. Apart from the foregoing, neither party may assign or subcontract its rights or obligations under this Agreement, in whole or in part, without the other party’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed), provided that either party may assign this Agreement without consent in the context of: (a) an assignment to an affiliate, or (b) a merger, acquisition, or sale of all or substantially all of its shares or assets, and further provided that such resulting assignee entity is able to and does assume all of the assigning party’s obligations hereunder. This Agreement shall be binding upon the Parties hereto and their respective lawful successors and permitted assigns.
14.7 Severability: If any one or more of the provisions of this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, any such provision shall be severable from this Agreement, in which event this Agreement shall be construed as if such provision had never been contained herein.
14.8 Survival: Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.
14.9 Governing Law: This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario. The parties specifically agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded from application to this Agreement. The courts of Ontario shall have the exclusive jurisdiction to hear any matter arising in connection with this Agreement.
14.10 Entire Agreement/Modification: This Agreement and the Quote (including any Schedules or Exhibits thereto) constitutes the entire agreement between the parties and supersedes all previous agreements and understandings relating to the subject matter hereof. This Agreement may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties. Your additional or different terms and conditions, whether on your purchase order or otherwise, shall not apply. Notwithstanding the foregoing, MAJiK reserves the right, in its discretion, to update or revise this Agreement, in its standard form, from time to time, and to post such updates on this site. You are responsible for checking this Agreement periodically for changes. Your continued use of the Services and Software following the posting of any changes to this Agreement constitutes acceptance of those changes, provided however that the terms of the Agreement in effect at the time of your payment for the Services and Software shall apply during the term for which you paid for the Services and Software.
14.11 Language: It is the express will of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
14.12 Counterparts: This Agreement may be executed in counterparts, each of which when executed by either of the parties shall be deemed to be an original and such counterparts shall together constitute one and the same Agreement.