Resolver Inc. Terms of Service
Version: 3.0 (view archived versions)
Last updated: August 20, 2021
Please read these Resolver Inc. ("Resolver") terms and conditions of use and service carefully. THESE TERMS OF SERVICE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS PAGE (THE "SITE"). ALWAYS CHECK THE "LAST UPDATED" DATE ABOVE.
These Terms of Service, which include Order Forms, schedules, exhibits, addenda and statements of work ("SOWs") referred to or linked to or incorporated herein (the "Terms"), create an agreement between the company, organization, legal entity or legal person listed on the Order Form ("Customer", "You" or "Your" and terms of similar meaning) and Resolver Inc. and its applicable affiliates ("Resolver", "We", "Our" or "Us" and terms of similar meaning) regarding Your access to and use of any Resolver software ("Software") and receipt of consulting, training, professional and/or other services (collectively, "Services"). All users must agree to these Terms before using the Software and Services.
If You are an individual agreeing to these Terms, You agree that these Terms apply to You as an User; additionally, if You are agreeing to these Terms on behalf of a company, organization, other legal entity or legal person, You represent that You have the authority to bind that entity and its affiliates, and its and their respective employees, agents, delegates, representatives and any other individuals that have been authorized by You to access and use the Software and receive the Services ("Users"), to these Terms. If You do not agree with the Terms or if You do not have such authority, You must not accept an Order Form (as applicable) and Customer and Users will not be permitted to access, receive and use the Software and Services.
Orders, Fees and Payments
- You may from time to time submit orders for Software and Services in an order form (an "Order Form") and those terms and conditions are incorporated into these Terms by reference. An Order Form and these Terms will be deemed to be accepted by You by: (i) You signing the Order Form; or (ii) You (or an User) registering for an account to access or use the Software; or (iii) You (or an User) otherwise access or use the Software (the "Order Effective Date").
- You will pay Us all fees as set out in an Order Form (the "Fees"). Fees for Software are payable regardless of Your actual usage of the Software.
- You will be responsible for all applicable taxes or other charges imposed by any governmental authority, relating to: (i) Us providing; or (ii) Your access, receipt and use of the Software and Services. If We are obligated to collect or pay taxes for which You are responsible, You will pay Us the appropriate amount unless You provide Us with a valid tax exemption certificate. We reserve the right to gross up the Fees for the Software and Services in an invoice if a withholding prevents Us from receiving the actual amount specified in an invoice.
- Any out-of-pocket expenses pre-approved by You and incurred by Us in compliance with Our Travel Policy (which can be found at https://www.resolver.com/legal ("Legal Page") and which are incorporated herein by reference) while performing Services will be charged to and payable by You.
- As You will have access to and use of the Software as of the Order Effective Date, all invoices are due upon Your receipt of the invoice and payable within 30 days of Your receipt. In all instances, if You do not pay Us on time, We may, after notifying You and waiting for a reasonable period of time, suspend Your access to and use of Software and/or the receipt of Services for non-payment.
Term and Termination
- These Terms begin to apply on the Order Effective Date and cease at the end of the initial subscription term set out in the Order Form (the "Initial Subscription Term"). At the end of the Subscription Term, these Terms will automatically renew for successive periods of 1 year each (each, a "Renewal Term", and together with the Initial Subscription Term, the "Subscription Term"), on the Resolver Terms of Service in force on the renewal date and at the Fees set out in an invoice or other written notice from Us to You unless You notify Us in writing at least thirty (30) days before the end of the then-current Subscription Term of Your intention to terminate these Terms. Any such termination will be effective on the last day of the then-current Subscription Term and You will pay for the Software and Services until the end of the then-current Subscription Term, regardless of when You provided notice.
- In the event of a breach of these Terms by either party that remains uncured for 20 business days, the non-breaching party may immediately terminate these Terms.
- Upon termination of these Terms for any reason whatsoever, You will pay all Fees owing to Us and We will not refund any Fees that You may have already paid to Us.
- Upon Your written request made within 30 days after the termination of these Terms, so long as You have paid Us all outstanding Fees, We will: (i) deliver to You, as applicable, any Customer Data in Our possession or control; or (ii) make available to You for download a file of Customer Data in a generally available format, as determined by Us, acting reasonably. After such 30-day period, We will have no obligation to maintain or provide any Customer Data and We will, unless legally prohibited, delete or destroy all Customer Data in Our systems or otherwise in Our possession or under Our control. At Your written request, an officer of Resolver will certify the delivery of and/or deletion or destruction of Customer Data following termination.
- The following provisions will survive any termination or expiration of these Terms: Sections 2.c, 2.d, 2.e, 10, 13, 14, 15, 16, 17 and any other provisions necessary to their interpretation.
Use of the Software
- As of the Order Effective Date, We grant You a limited, non-exclusive, non-transferable and non-assignable, worldwide right to access and use (and permit Users to access and use) the Software for Your internal business use during the Subscription Term and only as permitted by these Terms.
- Unless otherwise provided in these Terms, You will not: (i) resell, distribute, or use the Software on a timeshare, outsourced, or service bureau basis; (ii) provide access to the Software to a third party (other than to Users of Your legal affiliate or other agents acting on Your behalf); (iii) modify, reproduce, duplicate, deconstruct or reverse engineer the Software or create derivative works of the Software (unless Your Order Form so indicates; and in which case, the creation and use of such derivative works will be for Your sole benefit); (iv) use the Software to send: (1) unsolicited messages (e.g. "spam"); (2) infringing, obscene, threatening, libelous, or otherwise unlawful or tortious materials; (3) material containing malicious code; or (4) interfere with or disrupt the integrity or performance of the Software or the data contained therein.
- Any rights not explicitly granted in these Terms are strictly reserved by Us and You will not use the Software except in the manner as expressly granted herein. From time to time, We reserve the right to review Your usage of the Software to determine Your compliance with these Terms.
- For mobile use of the Software, You may need to download and install additional software from Us or a third party mobile "app" store or marketplace in which case these Terms also apply to such additional software and mobile "apps" (in addition to any other terms of such "app" store or marketplace). In the event of a conflict between or among the provisions of these Terms and the specific provisions of such additional software or mobile "apps", the provisions of these Terms will take precedence.
- Your use of the Software is subject to limits and restrictions as more specifically set out in an Order Form (e.g. number of Users, storage space, bandwidth etc.).
- As agreed upon by You and Us, You may use content from third parties in the Software ("3rd Party Content"). You acknowledge and agree that any 3rd Party Content that We may make available for Your use does not constitute legal or other professional advice and that You should seek such advice to ensure Your compliance. Any opinions expressed through the 3rd Party Content are the opinions of the particular author and do not reflect Our opinions.
- If You use Our data warehouse service in our Software (the "Data Warehouse"), then:
- You acknowledge and agree that the authorization model used by the Software to grant You and Your Users access to such Software does not apply to the Data Warehouse and as such any User to whom You grant access to the Data Warehouse will have complete and unrestricted access to all of Your Customer Data. You are responsible for Your and Your Users' access to and use of any and all Customer Data contained in the Data Warehouse.
- Your use of the Data Warehouse is subject to limits and restrictions as more specifically set out in the applicable Order Form (e.g. number of queries per hour, per User). If You exceed such limits or, if in Our opinion, Your Use of the Data Warehouse improperly restricts, inhibits, disrupts, degrades or impedes Our ability to deliver the Data Warehouse and the Software to others, then We may, without prior notice to You, temporarily disable Your and Your Users' access to the Data Warehouse.
- You acknowledge and agree that We may, restrict Your access to, and/or aggregate certain historical records contained in the Data Warehouse based on the age of the relevant record(s) and other usage factors determined by Us, in our sole opinion. By way of example only, We may, after a period of time, aggregate all updates performed on a record within a day into a single entry within the Data Warehouse. Our aggregation will affect those records contained in the Data Warehouse but will not have an impact on the audit functionality contained in the Software (which will continue to retain all entries).
Evaluation of the Software
- We may provide You with temporary access to the Software so that You can evaluate the Software in which case an Order Form may not be required for You to access and use the Software (the "Trial Access"). We may charge You Fees for the Trial Access.
- The Trial Access will be limited by time as communicated to You by Us (the "Evaluation Period"), unless terminated earlier in accordance with these Terms.
- During the Evaluation Period, You may only access and use the Software for Your internal test and evaluation purpose. We may immediately suspend or terminate Your access and use of the Software for any reason whatsoever.
- In exchange for the Trial Access, We may ask You to provide feedback to Us concerning the functionality and performance of the Software, including identifying potential errors and improvements ("Feedback").
- Notwithstanding any other provision of this Agreement, for the purposes of any Trial Access by You and during the Evaluation Period, THE SOFTWARE IS PROVIDED "AS IS" FOR LIMITED TEST AND EVALUATION PURPOSES ONLY.
- We may provide You with Services as set out in an Order Form and a SOW (or a Change Order to a SOW). A SOW may be required for each project, and may specify, among other things, the purpose and scope of the project, the responsibilities of each party, assumptions, deliverable(s) (if any), applicable fees and payment terms and any other specific requirements. In some instances, We may not commence providing Services to You unless a SOW has been agreed to by You and Us.
- We may provide the Services remotely or, subject to Section 1.d, at a location of Your choosing.
- Either You or We may request additions, deletions or amendments to the Services in a SOW ("Change"). A Change must be requested in writing signed by an authorized representative of the party requesting the Change ("Change Request"). We will not have an obligation to perform, and You will not have an obligation to pay for, Services related to any Change unless You and We have agreed to the Change in writing. If You request a Change, We will evaluate the request and, whether You or We requested a Change, We will provide You with a written estimate of the cost, if any, of the requested Change and any additional terms and conditions related to such Changes. Upon Your approval of the cost estimate and any such additional terms and conditions, You and We will enter into a change order document amending the applicable SOW (a "Change Order").
- In the event of a conflict between or among the provisions of these Terms and the specific provisions set forth in a SOW (including a Change Order), the provisions of such SOW will take precedence over these Terms only if such provisions specifically reference the provisions of these Terms that are in conflict or superseded.
- We will, in compliance with applicable laws (including privacy and/or data protection laws):
- use commercially reasonable efforts to provide You (and Your Users) with access to and use of the Software in accordance with Our Availability Guarantee (as described in Our Support Program);
- perform the Services in a professional and workmanlike manner in accordance with applicable professional standards;
- provide You with Software maintenance and support as set out in Our support and maintenance program ("Support Program", which can be found on the Legal Page);
- maintain a comprehensive information security program to ensure the confidentiality, integrity and availability of the Customer Data that You upload into the Software and protect such Customer Data from unauthorized use, access, modification, disclosure or destruction, in accordance with industry best practices and Our security policies ("Security Policies ", as described at https://www.resolver.com/trust("Trust Page")); and
- provide to You, at Your written request but no more than once every twelve (12) months during a Subscription Term, written reports regarding Our compliance with Our selected data security compliance programs (e.g. SOC II).
- We will not be responsible for any compromise, loss, delay, alteration, or interception of Customer Data during the transmission of any data whatsoever across the Internet or mobile telecommunications networks.
- If We provide You with 3rd Party Content, We will ensure that You have the proper rights to use such content.
- We will keep Our responses to industry-standard data security questions (available at our Trust Page) up-to-date during the Subscription Term. You acknowledge and agree that We will only assist You in completing any data security questionnaire after You have reviewed Our responses on Our Trust Page and that any additional requests for Us to complete any such questionnaire may be subject to a Fee payable by You to Us.
- Access to Our Software, Services, and Support Program may be restricted in limited jurisdictions that are subject to applicable export control and/or economic sanction laws and regulations ("Restricted Jurisdiction(s)"). These restrictions apply even when a User does not normally reside in a Restricted Jurisdiction and is only temporarily within such Restricted Jurisdiction for travel.
- In exchange for Us providing You with access to and use of the Software and the Services, You will, in compliance with all applicable laws:
- be responsible for Users' compliance with these Terms;
- if applicable, maintain commercially reasonable and appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Customer Data any time it is not in the Software;
- comply with applicable privacy and/or data protection laws in relation to the collection, use and disclosure of any personally identifiable information or personal data ("PII") that may be included in the data You upload into the Software, including Customer Data;
- be responsible for the accuracy, quality, integrity and legality of any content (including content obtained from or owned by third parties) and Customer Data You use in connection with the Software and Services;
- protect and securely manage account/user names, password(s), other login information and customer keys (if any) to prevent the unauthorized access to the Software and You will promptly notify Us in the event of an unauthorized access to the Software;
- if applicable, install all updates to the Software in a timely fashion, as provided by Us;
- be responsible for procuring and maintaining the Internet and mobile telecommunications network connections that connect Your Users and network to the Software; and
- be responsible for procuring and maintaining the appropriate licences and/or rights for any 3rdParty Content that is not provided by Us and/or that You include with or use in connection with any Customer Data that You upload into the Software.
- We may update these Terms from time to time. If You do not agree with the changes, You can cancel the Services, stop using the Software without further obligation, except for the payment of any amount due for any outstanding Services, and terminate these Terms. Any changes or modifications to these Terms will be effective immediately upon posting of the revisions on the Site, and Your continued use of the Services and Software after such time will constitute Your acceptance of such changes or modifications. Any such modifications will not materially increase Your risk or financial obligations. You should from time to time review the Terms to understand the terms and conditions that apply to Your use of the Services and Software. The Terms will always show the ‘Last Updated' date at the top. If You have any questions about the Terms, please email Us at email@example.com.
- We may, at Our discretion, enhance or modify the Software from time to time and We will provide You with reasonable notice of any material modifications: (i) at the email address You provide in Your Order Form; (ii) by posting a notice to this Site; or (iii) by posting a notice in the Software. Notwithstanding the foregoing, We may at any time modify or discontinue features of the Software to comply with applicable laws and regulations and accordingly, We will not be liable to You or to any third party for any modification or discontinuation of the Software in order to comply with applicable laws and regulations.
- We may use a third party vendor to host the Software, provide context aware guidance in the Software, provide additional services, or provide feedback to Us in relation to Your use of the Software. We may change certain elements of the hosting services or such third party vendors from time to time. In all cases, We will always be responsible for the performance of such third party vendors, in accordance with these Terms and in each case, any such changes will not materially change, alter or modify Your access to and use of the Software.
- We carry commercial general liability insurance and errors and omissions insurance with the limits and for the coverages set out in the Certificate of Insurance (a copy of which can be found on the Legal Page).
- Each party may use Confidential Information only for the purposes of these Terms and, except as specifically provided for in this Section 10, will not disclose to any third party any Confidential Information, without the prior written consent of the other party. For the purposes of these Terms, "Confidential Information" means all technical, scientific, marketing, business, financial and commercial information or data whether communicated in writing or orally, which is provided by a party (the "Disclosing Party") to the other party (the "Receiving Party") as a consequence of these Terms. The Receiving Party will be liable to the Disclosing Party for any breaches of this Section 10 by its employees, agents or third party service providers who obtain Confidential Information of the Disclosing Party from the Receiving Party. Confidential Information will not include information that: (i) was already known by or in the possession of the Receiving Party at the time of disclosure, other than through an obligation of confidentiality; (ii) was at the time of disclosure or thereafter became publicly available or known to the public or otherwise part of the public domain without breach of these Terms by the Receiving Party; (iii) was subsequently disclosed to the Receiving Party by a third person who had the right to make such disclosure; and (iv) is developed by the Receiving Party independently of any Confidential Information or other information received from the Disclosing Party.
- The foregoing obligations of non-disclosure and restricted use will not apply to any Confidential Information that is required to be disclosed by law or court order, provided that notice is promptly delivered to the Disclosing Party in order to provide an opportunity to seek a protective order or other similar order with respect to the Confidential Information and thereafter the Receiving Party discloses only the minimum information required to be disclosed in order to comply with such law or court order, whether or not a protective order or other similar order is obtained by the Disclosing Party.
- The agreements and covenants set forth in this Section 10 will be construed as being an agreement independent of any other provisions in these Terms. The existence of any claim or cause of action of either party against the other party, whether predicated on these Terms or otherwise, will not constitute a defence to the enforcement by such other party of any of the covenants and agreements of this Section 10. Each of the parties acknowledges that its failure to comply with the provisions of this Section 10 will cause irreparable harm to the other party which cannot be adequately compensated for in damages, and accordingly acknowledges that the other party will be entitled, in addition to any other remedies available to it, to interlocutory and permanent injunctive relief to restrain any anticipated, present or continuing breach of this Section 10.
Privacy and Data Protection
- We will not access Your Customer Data, except: (i) where instructed or permitted by You; or (ii) as required by law or to exercise or protect Our legal rights.
- You acknowledge and agree that: (i) the security measures We have implemented in relation to the Customer Data may limit Us from having knowledge (actual or implied) of, use of, or access to any PII that may or may not be contained in the Customer Data; and (ii) it may not be possible for Us to fulfill any of Your specific requirements (including legal requirements) in relation to PII and Customer Data (or We may not be able to do so without incurring costs and expenses for which We will invoice You).
- We will collect, use and process Customer Data only in accordance with: (i) Your instructions; and (ii) Our Privacy Statement (which is incorporated into these Terms by reference and which can be found on Our Legal Page) and to the extent reasonably required to provide the Software and Services.
- We will process Your production Customer Data in an agreed upon region (e.g. Canada, United States, Europe) as set out in an Order Form. We may transfer Your production Customer Data within the agreed upon region. We will not transfer Your production Customer Data outside of the agreed upon region without Your written consent. You acknowledge that We may provide Our Support Program from locations around the world, and You agree that any reasonable actions in the course of providing such support shall not be considered production Customer Data processing or a transfer of production Customer Data outside of the agreed upon region.
- You agree that We may contact You via e-mail or otherwise with information relevant to Your use of the Services and Your payment obligations.
- We will provide commercially reasonable assistance, and insofar as possible, to enable You to respond to any inquiry, communication or request from a subject of Customer Data seeking to exercise his or her rights under applicable data protection legislation. In the event of such inquiry is made directly to Us, We will inform You by providing details of such inquiry. For the avoidance of doubt, You are responsible for responding to such data requests for access, correction, restriction, objection, erasure or data portability of that individual's PII.
- If You are established in the European Economic Area, the United Kingdom, or Switzerland (collectively the "EEA") and/or to the extent that the Customer Data that We process on Your behalf through Your use of the Software contains PII of data subjects located in the EEA, then Our GDPR Addendum (the terms of which are available at Our Legal Page) will apply to Our processing of such Customer Data and such GDPR Addendum is incorporated into these Terms by reference.
- We make no claim to Your trade names, logos and other trademarks or service marks ("Marks") and Customer Data and We will not sell Your Customer Data to third parties.
- You are solely responsible for Your Customer Data. We are not liable to You, Your Users or Your customers for any loss or damages arising from any Customer Data. "Customer Data" means all visual, written or audible communications, files, data documents, videos, recordings, or any other material displayed, posted, uploaded, stored, exchanged or transmitted on or through Your use of the Software.
- You grant Us a world-wide, royalty-free, sub-licensable licence to use, modify, reproduce and distribute the Customer Data, only as reasonably required to provide access to and use of the Software (e.g., We may encrypt Your Customer Data which may involve use, reproduction and modification of Your Customer Data). You warrant that You have sufficient, lawful non-infringing rights to the Customer Data and to grant the license contained in this Section.
Warranty and Warranty Disclaimer
- Although We will make Our best effort to deliver functioning Software and an acceptable Service, We do not warrant that the Software, the Services or any content, including 3rd Party Content, provided will be error free, accurate, complete, up-to-date or satisfy all Your requirements. We will use commercially reasonable efforts to correct any error in the Software or the Services, in a timely fashion, that may be discovered by You or Us. All 3rd Party Content is provided on an as-is basis. You acknowledge and agree that We, and 3rd Party Content providers, have no liability for Your acts or omissions attributable to any 3rd Party Content.
- You acknowledge and agree that notwithstanding the Security Policies and Our methods and procedures to secure the Software, such methods and procedures may not prevent unauthorized electronic intruders to access the Software through the Internet or through other form of electronic communication. If such unauthorized electronic intruders are able to bypass Our security protocols, firewall and safeguards, such unauthorized electronic intruder may change, delete, access or otherwise corrupt Your Customer Data. Except for the maintenance of appropriate safeguards in compliance with the Security Policies, We will not be liable to You, and hereby disclaim responsibility, with respect to any action, destructive or otherwise, by any unauthorized electronic intruder.
- EXCEPT AS EXPRESSLY STATED IN THIS SECTION 13, TO THE EXTENT ALLOWED BY APPLICABLE LAW, WE (i) EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, CONDITION OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND (ii) MAKE NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES OR THE SITES, OR THAT THE SERVICES WILL MEET ANY OF YOUR REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.
Limitation of Liability
- Neither Party will be liable to the other in connection with any single event or series of related events for any punitive, exemplary, special, incidental, indirect or consequential loss or damage including, but not limited to, loss of profits, loss of revenue, failure to realize expected savings, loss of data or other commercial or economic loss of any kind even if either party has been advised of the possibility of these losses or damages, and regardless of the form of action, whether in contract or in tort, or based upon any other legal or equitable theory.
- OUR MAXIMUM AGGREGATE LIABILITY TO YOU RELATED TO OR IN CONNECTION WITH THESE TERMS WILL BE LIMITED AS FOLLOWS:
ANNUAL FEES PAID BY YOU TO US OUR LIMITATION OF LIABILITY Less than USD$75,000 Total annual fees paid by You to Us under these Terms for the 12-month period immediately prior to the claim. Between USD$75,001 – USD$150,000 USD$500,000 Between USD$150,001 – USD$250,000 USD$1,000,000 Greater than USD$250,000 USD$2,000,000
- THIS FOREGOING LIMITATION OF LIABILITY IS IN THE AGGREGATE AND NOT PER INCIDENT.
- THE LIMITATIONS IN SECTIONS 14(a) AND 14(b) DO NOT APPLY TO A BREACH OF SECTION 10, OR IN RELATION TO ANY INDEMNITY OBLIGATION SET FORTH IN THESE TERMS.
- You acknowledge that We have set Our Fees and entered into these Terms in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between You and Us.
Ownership and Proprietary Rights
- We and Our licensors own all intellectual property rights to the Software, Services and associated documentation. This ownership extends to all copies and portions of these items, and all improvements, enhancements, modifications and derivative works to these items and any work product arising out of the Services. Our ownership does not extend to Your Customer Data or Your Confidential Information. Your rights to use the Software are limited to those rights expressly granted by these Terms. You receive no other rights to the Software, any associated documentation, or Services or any related intellectual property rights in the Software.
- You grant to Us a worldwide, royalty-free, non-exclusive, perpetual, irrevocable license to: (i) use or transfer any feedback You give Us in relation to the Software for any purpose; and (ii) use, copy, store and display Customer Data on an aggregated and anonymous basis only for the purposes of improving or developing enhancements to the Software and to offer new products and services that may relate to Your Customer Data.
- We may use Your Marks to personalize the Software for Your use. Nothing in these Terms transfers to Us any rights or ownership in or to Your Marks.
- You acknowledge that We may access, and You instruct Us to process, Your Customer Data for the purpose of Us developing data insight features and artificial intelligence software, that in combination with different techniques, are used to obtain certain outputs (each, a "Model" and collectively, "Models") for Our Software. You acknowledge and agree that Models require Your Customer Data to train algorithms and that such Models may be modified and improved with the use of Your Customer Data. Upon Your written request, We will discontinue use of Your Customer Data for the purpose of developing the Models. We retain all ownership in and to all system performance data, Models, and aggregated results of such Models.
- We will defend, indemnify and hold You, Users, Your officers, directors and employees (the "Customer Indemnified Parties ") harmless from and against any and all third party claims, demands, suits, or proceedings ("Claim") for damages, costs, liabilities, expenses, attorney's fees, equitable relief or similar relief made or brought against the Customer Indemnified Party by a third party arising out of or relating to the actual or alleged infringement or misappropriation of such third party's intellectual property rights by Us, by Our provision of the Software or Services, or by Your authorized use of the Software or Services; provided that the Customer Indemnified Party: (i) promptly gives Us written notice of the Claim such that We are not materially prejudiced by the timing of such notice; (ii) gives Us sole control of the defense and settlement of the Claim (provided that We may not settle or defend any Claim unless it releases the Customer Indemnified Party of all liability); and (iii) provides to Us all reasonable assistance, at Our expense. No settlement will require any payment by the Customer Indemnified Party without such Customer Indemnified Party's written consent. The Customer Indemnified Party may monitor, at its own expense, such defense and any settlement discussions directly or through counsel of its choice.
- We will not have any liability for any claim of infringement or misappropriation of a third party's intellectual property caused by: (i) Your misuse or modification of the Software or any Services; (ii) Your failure to use corrections, enhancements or updates made available to You by Us; or (iii) information, direction, specification, or materials provided by You or any third party on Your behalf.
- If the Software or any deliverable item resulting from Our performance of the Services (the "Alleged Infringing Item") is, or in Our opinion is likely to be, held to constitute an infringement of a valid third-party right pursuant to this Section, We will at Our expense and option either: (i) procure for You the right to continue using the Alleged Infringing Item; (ii) replace the Alleged Infringing Item with a non-infringing equivalent, modify it to make it non- infringing; or (iii) terminate Your access, receipt and/or use of the Alleged Infringing Item and refund to You any pre-paid fees in relation to the Alleged Infringing Item less an amount for Your use of the Alleged Infringing Item up to the time of return. THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR INFRINGEMENT.
- You will indemnify, defend and hold Us and Our directors and employees harmless from and against any Claim for damages, costs, liabilities, expenses, attorney's fees, equitable relief or similar relief made or brought against Us by a third party alleging that the Customer Data that You disclose to Us infringes or misappropriates the rights of a third party or violates applicable law; provided that We: (i) promptly give You written notice of the Claim such that You are not materially prejudiced by the timing of such notice; (ii) give You sole control of the defense and settlement of the Claim (provided that You may not settle or defend any Claim unless it releases the Us of all liability); and (iii) provide to You all reasonable assistance, at Your expense. No settlement will require any payment by Us without such Our written consent. We may monitor, at Our own expense, such defense and any settlement discussions directly or through counsel of Our choice.
- These Terms will supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation, request for proposal or other document issued by You. These Terms, together with any other documents referenced herein (including for certainty, the Order Form), constitute the entire agreement between You and Us pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between You and Us. Except as expressly provided in this Agreement, there are no representations, warranties, conditions, other agreements or acknowledgements, whether direct or collateral, express or implied, that form part of or affect these Terms.
- Your or Our failure to enforce any provision of these Terms will not be construed as a waiver of any provision or right. Waiver by either You or Us of a breach of any provision of these Terms or the failure by either You or Us to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
- In the event that a portion of these Terms are held to be unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect.
- We may delegate the performance of any or all of Our obligations hereunder to third parties, provided that We will remain liable for performance hereunder. You may not assign these Terms or Your rights and responsibilities hereunder without Our prior written consent unless the assignee is an acquiring party, acquired or merged party, majority owner, a subsidiary or affiliate party including by purchase, merger or operation of law. Subject to the foregoing, these Terms will be binding upon the parties' respective successors and permitted assigns.
- All notices hereunder will be in writing and will be deemed to have been given upon the day of personal delivery, the third business day after mailing, or the first business day after sending by email. Notice to Us will be to: Resolver Inc., 111 Peter Street, Suite 804, Toronto, Ontario, M5V 2H1 Canada Attention: Law Department and/or firstname.lastname@example.org. Notices to You will be to the mailing and email address You provide in Your Order Form.
- You agree that We may refer to You by trade name and Marks, and may briefly describe Your business and the nature of these Terms, in Our marketing materials and web site.
- The laws of the Province of Ontario (without regard to its conflict of laws provisions) and all laws of Canada applicable in the Province of Ontario will govern these Terms and all matters arising out of or relating to these Terms. Any legal action or proceeding relating to these Terms will be instituted in the courts of the Province of Ontario. However; if You are located in: (i) the United States of America, the laws of the State of Delaware (without regard to its conflict of laws provisions) and any laws of the United States of America applicable in the State of Delaware will govern these Terms and all matters arising out of or relating to these Terms and any legal action or proceeding relating to these Terms will be instituted in the courts of the State of Delaware; or (ii) the United Kingdom, Europe, Asia, the Middle East or Oceania, the laws of England (without regard to its conflict of laws provisions) will govern these Terms and all matters arising out of or relating to these Terms and any legal action or proceeding relating to these Terms will be instituted in the courts of England.
- You and We are independent entities. Nothing in these Terms will be construed as creating a partnership, joint venture or agency relationship between You and Us.
- Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under these Terms to the extent that it is due to any cause beyond its reasonable control, including, without limitation, an act of war, terrorist act, act of God, earthquake, fire, flood, pandemic, embargo, riot, sabotage, labor shortage or dispute, or governmental act, computer attack or malicious act, such as an attack on or through the Internet, or an attack against any Internet service provider, telecommunications facility or hosting facility.