Terms
Please read these Terms of Service carefully. These Terms of Service create an agreement (the “Agreement” or “Terms”) between you (“Customer”) and 9219-4695 Quebec Inc., a Quebec corporation (“Kickflip”, “We,” “Our” or “Us”) regarding your access to and use of the Kickflip Website service and associated software that you are registering to use via the Internet or click to accept process. All Customers must agree to this Agreement before using the Services, unless you have a separate written agreement in place expressly covering the Services (as defined below). If you accept this Agreement for an entity, you represent that you have the authority to bind the entity to this Agreement. If you do not agree to this Agreement, leave this page and do not use the Services. By clicking and providing the information, you are acknowledging and agreeing that you have read these terms and conditions in their entirety. If you are located in Quebec, you accept on behalf of yourself of the entity you represent that a French version of these Terms has been made available to you and you expressly agree to be bound by the present English version thereof. Si vous résidez au Québec, vous acceptez en votre nom ou au nom de l'entité que vous représentez qu’une version française de ces termes et conditions vous a été préalablement offerte et vous acceptez expressément d’être liés par la version anglaise de ces termes.
Article 1 – Definitions
1.1
As used in this Agreement, the following capitalized terms will have the meanings set forth below.
(a)
Action means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, investigative, regulatory or other, whether at Law, in equity or otherwise.
(b)
Affiliate of a Person means any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with the first Person.
(c)
Confidential Information means all proprietary information of Kickflip, Customer or a third party disclosed on or after the date hereof by Kickflip to Customer or Customer to Kickflip in any form (written, oral, photographic, electronic, magnetic, or otherwise) which is designated as confidential or proprietary. Confidential Information shall expressly include the Kickflip Software and associated documentation, technical data, methods, computer programs and related materials, product specifications, documentation, processes, inventions, products under development, the terms and conditions of this Agreement, and pricing, regardless of whether such information is designated as confidential by Kickflip, as well as Customer Data that is specifically marked as confidential.
(d)
Custom Template has the meaning set forth in section 6.2.
(e)
Customer Data means any and all materials and content, including without limitation the advertisements, trade names, trademarks, logos, images, photos, marks, creative and any and all information and/or data provided by Customer or a third party on behalf of Customer to Kickflip in connection with providing the Services under this Agreement, regardless of whether such information or data is proprietary to Customer.
(f)
Customer Systems means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly by Customer or through the use of third-party services.
(g)
Effective Date means the last date indicated on the signature page of this Agreement.
(h)
Fees means all fees for the Services and other consideration, payable hereunder, as detailed in Appendix B hereto.
(i)
Force Majeure has the meaning set forth in Section 12.11.
(j)
Indemnitee has the meaning set forth in Section 10.3.
(k)
Indemnitor has the meaning set forth in Section 10.3.
(l)
Initial Term has the meaning set forth in Section 8.1.
(m)
Intellectual Property Rights means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trade-mark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(n)
Law means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.
(o)
Losses means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees, disbursements and charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(p)
Kickflip Materials means the Software, specifications, documentation and Kickflip systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions that are provided or used by Kickflip or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Kickflip systems. For the avoidance of doubt, Kickflip Materials do not include Customer Data.
(q)
Party (and the term Parties) has the meaning set forth in the preamble to this Agreement.
(r)
Person means an individual, corporation, partnership, unlimited liability company, Governmental Authority, unincorporated organization, trust, association or any other entity.
(s)
Personal Information means any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted or located. Personal Information includes information identified as such by relevant Canadian Laws, including the Personal Information Protection and Electronic Documents Act.
(t)
Renewal Term has the meaning set forth in Section 8.2.
(u)
Selected Plan means the subscription plan with respect to the Services selected by Customer, as described in Appendix B hereto, namely the “Scale” and Custom Plans.
(u)
Services means the suite of services which Customer hereby engages Kickflip to provide as described in Appendix A hereto.
(v)
Service Level means the measurable quality and quantity of service Kickflip warrants to maintain as part of providing the Software and Services, as detailed in Appendix C hereto.
(w)
Software means Kickflip’s software application or applications and any third-party or other software that Kickflip provides remote access to, and use of, as part of the Services, as detailed in Schedule A, and all new versions, updates, revisions, improvements and modifications of the foregoing.
(x)
Subcontractor has the meaning set forth in 2.3.
Article 2 – Services
2.1
Software Services
Subject to and conditional on compliance with the terms and conditions of this Agreement by Customer, during the Term, Kickflip shall use commercially reasonable efforts to provide Customer with the Software and the Services described in Schedule A in accordance with the terms and conditions of this Agreement, including to host, manage, operate and maintain the Software for remote electronic access and use by Customer in conformity with in the Service Levels outlined in Schedule C.
2.2
Software Service and System Control
Except as otherwise expressly provided in this Agreement:
(a)
Kickflip has and will retain sole control over the hosting, operation, provision, management and maintenance of the Services and Kickflip Materials.
(b)
Customer has and will retain sole control over the operation, management and maintenance of, and all access to and use of, the Customer Systems, and sole responsibility for all access to, and use of, the Services and Kickflip Materials by any Person by or through the Customer Systems or any other means controlled by Customer.
2.3
Customer data
Kickflip shall, throughout the Term,
(a)
designate and identify to Customer an individual to handle all aspects of the Services that relate to the handling of the Customer Data;
(b)
limit the use of the Customer Data to the purposes specified and necessary to carry out this Agreement or as prescribed by Law;
(c)
upon completion or termination of this Agreement, return to Customer, or at Customer’s discretion, dispose of the Customer Data, and immediately cease use of the Customer Data, except to the extent authorized in writing by Customer; and
(d)
so long as Kickflip remains in possession, custody or control of such Customer Data, use reasonable physical, organizational and technological security measures that are appropriate having regard to the sensitivity of the information to protect such Customer Data against loss, theft and unauthorized access, disclosure, copying, use, modification or disposal, and, without limiting the foregoing:,
(i)
restrict logical and physical access to Customer Data to only those authorized employees and subcontractors that require access to such information to fulfill their job requirements and that are subject to binding obligations of confidentiality and data protection no less stringent than those of this Agreement;
(ii)
not print, save, copy or store any Customer Data, whether on removable, mobile or other media, in printed, electronic or optical form or otherwise, except temporarily to the extent necessary in connection with providing the Services; and
(iii)
not move, remove, relocate or transmit any Customer Data from Kickflip’s facilities without using appropriately secure encryption technology to protect such information while in transit, without using appropriate secure encryption technology to protect such encryption in transit.
Customer hereby specifically agrees that third parties may provide cloud server services to Kickflip and that Customer Data may be stored or handled at any such third parties facility.
Kickflip shall use commercially reasonable effort to ensure that all Confidential Information and other client data, databases or other records containing Customer Data (including Personal Information) used by or made available to Kickflip in connection with the Services are at all times kept logically isolated and separate from any information, data, databases or records of Kickflip or any third parties (including other customers of Kickflip or Customer).
2.4
Personal Information
Kickflip shall, throughout the Term,
(a)
immediately refer to Customer any individual who contacts Kickflip seeking access or correction to or with any inquiries or complaints about his or her Personal Information in connection with or otherwise relating to the Services;
(b)
immediately notify Customer regarding any such request, inquiry or complaint; and
(c)
provide, in a timely manner, at Customer’s cost and expense, all reasonable co-operation, assistance, information and access to Personal Information in its possession, custody or control as is necessary for Customer to promptly (and, in any event, within any timeframe required by applicable privacy Laws) respond to such request, inquiry or complaint.
In addition, on reasonable notice and during normal business hours, Kickflip shall, during the Term, permit Customer or its designee to inspect any Personal Information provided by Customer to Kickflip hereunder that is in the custody or possession of Kickflip solely in connection with the Services and to audit Kickflip’s compliance with its obligations described in this Agreement.
Kickflip shall immediately notify Customer of any reasonably suspected or actual loss of data or breach or compromise of its information security systems which has or may result in the loss or unauthorized access, disclosure, use or acquisition of Confidential Information (including hard copy records) or otherwise presents a potential threat to any Customer systems.
2.5
Subcontractors
Kickflip may, from time to time, in its discretion, engage third parties to perform the Services (each, a Subcontractor).
2.6
Suspension or Termination of Services
Kickflip may, directly or indirectly, by use of any lawful means, suspend, terminate or otherwise deny access to or use of all or any part of the Service or Kickflip Materials by Customer or any other Person, without incurring any resulting obligation or liability if:
(a)
Kickflip receives a Governmental Order that expressly or by reasonable implication requires Kickflip to do so; or
(b)
Kickflip believes, in good faith, that:
(i)
Customer has failed to comply with, any material term of this Agreement or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement, which without limiting the generality of the foregoing, includes a breach to the specific terms corresponding to Customer's chosen Selected Plant;
(ii)
Customer is, has been or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Services; or
(iii)
this Agreement expires or is terminated.
This section 2.6 does not limit any of Kickflip’s other rights or remedies, whether at Law, in equity or under this Agreement.
Article 3 – Authorization and Restrictions
3.1
Authorization
Subject to and conditional on Customer’s payment of the Fees and compliance with all other terms and conditions of this Agreement, Kickflip hereby authorizes Customer to access and use, during the Term, the Services in accordance to the Selected Plan and such Kickflip Materials as Kickflip may supply or make available in accordance with the terms and conditions of this Agreement. This authorization is non-exclusive and non-transferrable.
3.2
Limitation and Restrictions
Customer shall not, and shall not permit any other Person to, access or use the Services except as specified in this Agreement. For the purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as otherwise expressly provided herein:
(a)
copy, modify or create derivate works or improvements of the Software or Services;
(b)
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Kickflip Materials to any Person;
(c)
provide, disclose, sublicense or otherwise permit any Person to access, use, read, disseminate, transmit, download or reproduce the Software;
(d)
adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Software in any manner or to any extent whatsoever, whether in whole or in part;
(e)
disassemble, decompile, reverse engineer, deconstruct or otherwise gain access to the source code to all or any part of the Software, Services or Kickflip Materials;
(f)
access or use the Services or Kickflip materials for purposes of competitive analysis of the Services and Kickflip Materials, the development, provision or use of a competing software service or product, to disclose the results of any software benchmark tests without Kickflip’s prior written consent or any other purpose that is to Kickflip’s detriment or commercial disadvantage;
(g)
access or use the Services or Kickflip Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any IP rights or other right or any third party or that violates any applicable Law; or
(h)
otherwise access or use the Services or Kickflip Materials beyond the scope of the authorization granted under section 3.1, namely outside of the specific limitations and authorizations pertaining to the Selected Plan
3.3
Customer Restrictions
Customer shall not, and shall not permit any other Person to use the Services as specified in this Agreement for the sale or any other form of distribution of firearms, firearm parts, ammunition, weapons, explosive devices or other devices designed to cause physical harm or instructions for the manufacture of explosives, firearms, ammunition, restricted firearm accessories, or other weapons.
3.4
Custom Plan
If Customer has selected the “Scale” Plan, Customer endeavors to conclude all transactions with third-parties using in whole or in part the Software and related services on Kickflip's software platform and shall pay the corresponding transaction fee. Customer must contact the Kickflip sales team at sales@gokickflip.com and subscribe to an Custom Plan if Customer intends to :
(a)
conclude sales online through any other means than directly through the Kickflip official plugins and wishes to use a custom integration without payment of the Transaction Fee;
(b)
use the Software to generate quotes and/or mockups to conclude sales offline without payment of the Transaction Fee; or
(c)
use the Software for marketing purposes only without concluding any sales or transactions, thus not incurring the Transaction Fee.
Kickflip reserves the right to immediately terminate any Customer account on a Selected Plan engaging in one of the above activities, without limitation to any other right or recourse for breach of this Agreement.
3.5
Customer Obligations
Customer shall at all times during the Term:
(a)
provide Kickflip with all reasonable support and access to personnel, data (including Customer Data) and computer systems, necessary to allow Kickflip to perform the Services and its obligations under this Agreement;
(b)
set up, maintain and operate in good repair any equipment and ancillary services needed to connect to, access or otherwise use the Services;
(c)
be solely responsible for all activity occurring under Customer accounts and for compliance with the terms of this Agreement and all applicable local, state, provincial, national and foreign Laws, treaties and regulations, relating to Customer’s use (and Customer’s customers’ use) of the Services, including those related to the protection of intellectual property, data privacy, international communications and the transmission of technical or personal data; and
(d)
notify Kickflip immediately of any known unauthorized use of any password or account or any other known or suspected breach of security.
Kickflip is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
Article 4 – Security
4.1
Kickflip Obligations
Kickflip will employ security measures in accordance with applicable industry practice.
4.2
Customer Obligations
Customer has and will retain sole responsibility for:
(a)
all Customer Data, including its content and use;
(b)
all information, instructions and materials provided by or on behalf of Customer in connection with the Services;
(c)
Customer Systems; and
(d)
all access to and use of the Services and Kickflip Materials directly or indirectly by or through the Customer Systems, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
4.3
Access and Security
Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to:
(a)
securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and
(b)
control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
Article 5 – Fees and Payment
5.1
Service Fees
Customer will pay Kickflip the Fees as provided for in Appendix B. Any Services that may be provided by Kickflip to Customer that is not within the scope of the Services shall be subject to separately signed statements of work entered into by Kickflip and Customer from time to time.
5.2
Payment
If you are using Kickflip’s Shopify App, Shopify Inc. (“Shopify”) provides us with the online e-commerce platform that allows us to provide the Services to you. Your data is stored through Shopify’s data storage, databases and the general Shopify application. They store your data on a secure server behind a firewall.
If you choose a direct payment gateway to complete your purchase, then Shopify stores your credit card data. It is encrypted through the Payment Card Industry Data Security Standard (PCI-DSS). Your purchase transaction data is stored only as long as is necessary to complete your purchase transaction. After that is complete, your purchase transaction information is deleted.
For more insight, you may also want to read Shopify’s Terms of Service or Privacy Statement.
If you are not using Kickflip’s Shopify App, you shall pay all Fees upon receipt of Kickflip’s invoice for Services performed in conformity with the specifications set out in Appendix A. You shall make all payments hereunder in US dollars by credit card.
5.3
Procurement of Customer Data
Customer shall be responsible for any fees associated with the procurement and delivery to Kickflip of Customer Data for use with the Services.
5.4
Taxes
All Fees are exclusive of all federal, provincial, state or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future related to Customer’s receipt of the Services (Taxes). If you are a resident of Canada, you are responsible for all applicable Taxes that arise from or as a result of your receipt of the Services. These Taxes are based on the rates applicable to the Canadian billing address you provided to us. Such amounts are in addition to payment for the Services and will be billed to you in the same manner as the Fees are billed. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such a certificate.
If you are not a resident of Canada and not subject to Canadian Goods and Services Tax/Harmonized Sales Tax (GST/HST) in respect of the Services, you must provide us with a statement by email to info@gokickflip.com that (a) you are not a resident of Canada (b) you are not GST/HST registered and (c) to the extent that you are an individual and not a corporation or other legal entity, you were not physically present in Canada when the Services were provided. The statement should also include your complete home and/or business location address. If you do not provide such information, you will be charged for Taxes which will be billed to you in the same manner as the Services Fees are billed until after such time that you provide us with the information described.
To the extent that you are a non-resident individual and not a corporation or other legal entity, and your location of usage shifts to a place in Canada when the service is made, you must advise us immediately by email to the address provided above.
5.5
Fee Increases
Kickflip may increase Fees, no more than once annually, for any calendar year after the Initial Term by providing written notice to Customer at least sixty (60) days before the commencement of such calendar year, and Schedule B will be deemed amended accordingly.
5.6
Refunds
Kickflip does not provide refunds of payments made in connection with any Services performed in conformity with the specifications set out in Appendix A and the warranties provided herein.
Article 6 – Intellectual Property
6.1
Kickflip Intellectual Property
All right, title and interest in the Services and Kickflip Materials, including all Intellectual Property Rights embodied therein, belong solely and exclusively to Kickflip or its licensors. Modifications to the Services and Kickflip Materials, including all Intellectual Property Rights embodied therein, created and provided by Kickflip pursuant to this Agreement, whether alone or with any contribution from Customer or its employees, will be owned exclusively by Kickflip. To the extent Customer or its employees may own any right or interest in such modifications by operation of Law, Customer hereby irrevocably assigns any and all such right, title and interest to Kickflip. Customer agrees to execute all documents necessary for Kickflip to perfect its ownership of such modifications and all Intellectual Property Rights embodied therein. Customer will maintain and enforce agreements and policies with its employees in order to give effect to the provisions of this Section 6.1.
6.2
Customer Intellectual Property
All right, title and interest in the Customer Data, including all Intellectual Property Rights embodied therein, shall belong solely and exclusively to Customer or its licensors. Customer hereby grants to Kickflip a non-exclusive license to use and reproduce the Customer Data as needed solely for the purposes of providing the Services to the Customer. All right, title and interest in any custom work created, developed or generated by Kickflip at the direction of Customer which employs or incorporates Customer Data pursuant to this Agreement and which is not derivative work of Kickflip Materials (Custom Templates) shall be owned solely and exclusively by Customer. Kickflip hereby irrevocably assigns any and all right, title and interest it may have in Custom Templates to Customer. Kickflip agrees to execute all documents necessary for Customer to perfect its ownership of the Custom Templates and all Intellectual Property Rights embodied therein. Kickflip will maintain and enforce agreements and policies with its employees in order to give effect to the provisions of this Section 6.2.
Article 7 – Confidentiality
7.1
Disclosure of Confidential Information
Subject to clause 7.2, a party will not, without the prior written approval of the other party, use or disclose the other party’s Confidential Information, except that each party may use or disclose, on a strictly confidential basis, Confidential Information to the extent necessary to perform such party’s obligations hereunder, including disclosure to those of its employees, agents or external advisers who have a need to know in order to perform their obligations in a manner consistent with this Agreement.
7.2
Limitations
Section 7.1 does not apply to information that:
(a)
is generally known to the public through no unauthorized act or failure to act by the receiving party;
(b)
was known to the receiving party without an obligation of confidentiality prior to receiving such information from the disclosing party and the same can be established by supporting written documentation;
(c)
is hereafter furnished to the receiving party by a third party who has no confidentiality obligations relating to such information; or
(d)
is independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information as established by written documentation.
Nothing in this Agreement will prevent the receiving party from disclosing information to the extent the receiving party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the receiving party shall
(a)
assert the confidential nature of the information to the agency;
(b)
immediately notify the disclosing party in writing of the agency’s order or request to disclose; and
(c)
cooperate fully with the disclosing party in protecting against any such disclosure.
Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public, or disclose, the other party’s Confidential Information.
Article 8 – Term and Termination
8.1
Initial Term
For the “Scale” Plan, the initial term of this Agreement shall be a period of one (1) month following the Effective Date (Initial Term). The Initial Term for the Custom Plan shall be determined jointly by Customer and Kickflip based on the Customer’s needs.
8.2
Renewal term
The Term of the Agreement shall be automatically renewed for successive one (1) month terms, unless a notice of non-renewal is given by one party to the other at least 30 days prior to the date of expiry of the then-current term or otherwise provided by the Parties (Renewal Term).
Kickflip will continue to charge the Fees until the Services are terminated in accordance with this Agreement, and any and all outstanding Fees have been paid in full.
Subject to Section 12.10 and the payment of any outstanding fees owed for the Services, the Customer may cancel his account at any time. If at the date of termination of the Services, there are any outstanding Fees, you will receive a final invoice for such outstanding Fees via email. Once that invoice has been paid in full, you will not be charged for the Services again.
8.3
Termination
Either party may terminate this Agreement immediately by notice in writing if the other party:
(a)
files a petition in bankruptcy or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy Law, or discontinues its business or has a receiver appointed for its business; or
(b)
materially breaches this Agreement and does not remedy such breach within thirty (30) days following written notice requiring it to do so. Among other rights and remedies for breach by Customer, Kickflip shall be entitled, upon the provision to Customer of thirty (30) days’ written notice of a failure by Customer to make timely payments, to suspend provision of the Services until the breach has been cured.
8.4
Consequences of Termination
Upon termination or expiration of this Agreement, except as otherwise expressly provide in this Agreement:
(a)
all rights granted by either party to the other party hereunder shall immediately cease; and
(b)
If expressly requested by Customer in writing by email, Kickflip shall return or certify as destroyed all materials provided to it by the Customer under this Agreement, including all Confidential Information of Customer in its possession or under its power or control. Absent such request, Kickflip shall retain such materials or Confidential Information solely to allow Customer to resume its use of the Software or Services, should it choose to do so at a later time. Such return or destruction shall also not apply to all data and information which as a matter of routine information technology backup that must be stored by Kickflip as required by applicable laws (including tax and audit purposes). Such Customer data and information shall continue to be subject to the confidentiality and security provisions set forth in this Agreement.
Article 9 – Representations and Warranties
9.1
Mutual Representations and Warranties
Each party represents and warrants to the other party that:
(a)
it has all required power and capacity to enter into this Agreement, to grant the rights provided for under this Agreement and to perform its obligations under this Agreement;
(b)
when executed and delivered by each of the parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
9.2
Additional Kickflip’s Representations and Warranties
Kickflip represents and warrants that (i) it will perform the Services using personnel of required skill, experience and qualification and in a professional and workmanlike manner in accordance with the commercially reasonable industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
9.3
Additional Customer Representations and Warranties
Customer represents and warrants that the use of Customer Data by Kickflip in connection with the Services does not and will not infringe the Intellectual Property Rights of any third party or violate any applicable Laws, including data privacy Laws.
9.4
Disclaimer of Conditions and Warranties
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN Article 9, ALL SERVICES AND KICKFLIP MATERIALS ARE PROVIDED “AS IS” AND KICKFLIP HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE UNDER THIS AGREEMENT, AND KICKFLIP SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, KICKFLIP MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SERVICES OR KICKFLIP MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (i) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (ii) OPERATE WITHOUT INTERRUPTION; (iii) ACHIEVE ANY INTENDED RESULT; (iv) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS; OR (v) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
Article 10 – Indemnification
10.1
Mutual Representations and Warranties
Kickflip shall indemnify, defend and hold harmless Customer from and against any and all Losses incurred by Customer arising out of or relating to any Action by a third party (other than an Affiliate of Customer) that Customer’s use of the Services (excluding Customer Data and third party materials) in compliance with this Agreement infringes an Intellectual Property Right protected in Canada. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
(a)
access to or use of the Services or Kickflip Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Kickflip;
(b)
modification of the Services of Kickflip Materials other than: (i) by or on behalf of Kickflip, or (ii) with Kickflip’s written approval in accordance with Kickflip’s written specification; or
(c)
failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Kickflip.
Article 10 – Indemnification
10.2
Indemnity by Customer
Customer shall indemnify, defend and hold harmless Kickflip and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and permitted assigns (each, a Kickflip Indemnitee) from and against any and all Losses by such Kickflip Indemnitee incurred in connection with any Action by a third party (other than an Affiliate of a Kickflip Indemnitee) to the extent such Losses arise of or relate to any:
(a)
use of Customer Data, including any processing of Customer Data by or on behalf of Kickflip in accordance with this Agreement;
(b)
use of any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer, including Kickflip’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by Kickflip;
(c)
allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or
(d)
negligence or more culpable act or omission (including recklessness or wilful misconduct) by Customer or any third party on behalf of Customer in connection with this Agreement.
10.3
Indemnification Procedure
Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified under this Article 10. The party seeking indemnification (Indemnitee) shall cooperate with the other party (Indemnitor) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defence and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligation under this Section 10.3 will not relieve the Indemnitor of its obligations under this Article 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Article 11 – Limitation of Liability
11.1
Exclusion of Damages
IN NO EVENT WILL Kickflip BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; (iv) BREACH OF DATA OR SYSTEM SECURITY; OR (v) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER Kickflip WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.2
Cap on Monetary Liability
THE LIABILITY OF Kickflip FOR ANY CLAIM ARISING OUT OF OR IN ANY CONNECTION WITH 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 BY CUSTOMER AND SHALL NOT EXCEED THE FEES PAID BY CUSTOMER HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. CUSTOMER AGREES THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS ARTICLE 11 ARE REASONABLE BASED UPON THE COMMERCIAL CIRCUMSTANCES, AND Kickflip WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS CONTAINED HEREIN.
Article 12 – Miscellaneous
12.1
Independent Contractor
Kickflip enters into this Agreement as an independent contractor. Nothing in this Agreement will be construed as creating the relationship of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent.
12.2
Assignment
No party may assign this Agreement without obtaining the prior written consent of the other party, which consent will not be unreasonably withheld, except that Kickflip may assign this Agreement without the consent of Customer to an Affiliate or to a third party acquiring all or substantially all its assets.
12.3
Governing Law
This Agreement will be governed and construed in accordance with the Laws of the Province of Quebec and all claims arising hereunder shall be brought exclusively in the courts located in the Province of Quebec in a judicial district located within the City of Quebec.
12.4
Entire Agreement
This Agreement, including appendixes, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all preceding and contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both parties.
12.5
Notices
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email, in either case, with confirmation of transmission if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses indicated below:
•
If to Kickflip: info@gokickflip.com
•
If to Customer: to the email address used by Customer in order to subscribe to the Services.
12.6
Publicity
Customer and Kickflip agree that, upon prior written approval from the other party, either party may use each other’s name and logo in presentations, marketing materials, press materials, customer lists, financial reports and website listings of customers.
12.7
Headings
All headings to Sections and Subsections are provided for convenience only, and shall not be used for purposes of construction of this Agreement.
12.8
Waivers
Waiver by a party of any breach by the other party shall not be deemed a waiver of any other of subsequent breach.
12.9
Severability
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12.10
Unilateral Termination
Customer hereby waives the application of Section 2125 of the Civil Code of Quebec.
12.11
Force Majeure
No party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is caused by any act of God, any governmental authority, war, civil disturbance, third party non-performance caused by an act of force majeure as defined in this clause, or any other cause beyond its reasonable control which prevents or hinders in any material way the carrying out by either party of its obligations under this Agreement, including without limitation failures in telecommunications equipment or lines, (Force Majeure), provided that the Force Majeure exception to performance shall not apply to a payment obligation. If a delay or failure of a party to perform its obligations is caused by Force Majeure, the performance of the parties’ obligations will be suspended for the period during which the Force Majeure continues.
12.12
Binding Effect
Subject to the limitations herein before expressed, this Agreement will inure to the benefit of and shall be binding upon the parties, their permitted successors and assigns.
12.13
Schedules
Schedules (which form an integral part of this Agreement)
Schedule A – Description of Services
Schedule B – Description of Fees
Schedule C – Service Level Agreement
SCHEDULE A
Software and Services Description
Kickflip is a Web-based Software-as-a-Service platform enabling the sales process of customized goods. The Software focuses on three main aspects of the process:
1.
The Customer’s customization experience;
2.
The Customer’s order tracking and processing of custom product orders; and
3.
The Customer’s content management system.
Services can be described as Kickflip’s commitment to design, build and support new or improved Software features related to the process described above. Services are also Kickflip’s support activities to provide Customer with all the reasonable assistance needed to benefit of the Software’s full capabilities.
Custom software development services are not covered by this Agreement and are quoted and priced separately.
For optimal performance, the Software has to run in an Internet browser explicitly supporting HTML5.
Hosting: Kickflip is entirely hosted on the servers of Amazon Web Services.
1.
The consumer’s customization experience.
Guides the consumer in navigating through the multiple product’s options:
1.1.
Provides a product preview visualization;
1.1.1.
Photo Realistic;
1.1.2.
Multiple views;
1.1.3.
Zoom;
1.1.4.
Customizable zones highlights with tool-tips;
1.1.5.
Product mouse listener allows navigation between product options;
1.2.
Updates product preview in real time to reflect the consumer’s options choices;
1.2.1.
Text;
1.2.2.
Material / texture;
1.2.3.
Color;
1.2.4.
Component;
1.2.5.
Updates pricing and custom codes in real time to reflect the consumer’s options choices;
1.2.6.
Sends custom order mockup to consumers by email when customization is completed;
1.2.7.
Enables to print order mockup to order in-store;
1.2.8.
Enables to share custom product designs on social networks.
2.
The business’ order tracking and processing of custom products orders functionalities are:
1.1.
Provides a product preview visualization;
1.1.1.
Photo Realistic;
1.1.2.
Multiple views;
1.1.3.
Zoom;
1.1.4.
Customizable zones highlights with tool-tips;
1.1.5.
Product mouse listener allows navigation between product options;
1.2.
Updates product preview in real time to reflect the consumer’s options choices;
2.1.
Completed orders are assigned a unique ID#;
2.2.
Each ID# is assigned an order sheet/mockup of the customized product;
2.3.
Unique ID# are tracked on Kickflip’s client dashboard;
2.4.
The dashboard enables orders confirmation process.
3.
The content management system functionalities are:
Product Builder
Allows Customer to create and edit customizable products by uploading images and combining components, texts, logos, and options, with a graphical user interface.
Choice Panel Builder
Allows Customer to create and edit the choices that will be displayed in the customizer with a graphical user interface.
Starting points
Allows Customer to create different versions of a product so that their owner customers can start their customization from those versions.
Pricing
Allows Customer to edit the base price of a product and add pricing upcharges for different options.
Theme editor
Allows Customer to edit the appearance (colors, fonts) of his customizer.
Translations
Allows Customer to translate his customizer and products to other languages.
SCHEDULE B
Description of Fees
In consideration for the Services for the “Scale” Plan, the Customer will pay Kickflip a monthly commission fee which shall be calculated based on a percentage of the number of monthly custom orders processed and confirmed through the platform, as indicated herein: https://gokickflip.com/pricing/ (the “Transaction Fee”). The Transaction Fee for the Custom Plan, or for additional features and add-ons negotiated and agreed-to between the Parties may include additional components, including fixed monthly fees, which will be communicated in separate documentation to be provided upon request.
Additional Services: Kickflip may also quote and provide custom developments and other services such as 3D rendering or artwork separately, which shall be subject to custom pricing based on the Customer’s needs.
Currency: All prices are in U.S. dollars.
SCHEDULE C
Service Level Agreement (SLA) - Product Customization Platform
1.
Purpose
This document describes the level of service that Kickflip will provide to Customer.
2.
Scope
This SLA applies only to performance issues directly related to the Software or Services. The scope of this SLA does not, under any circumstances, include the performance of the public Internet, Customers website, or Customers integration of Kickflip code that has not been certified by Kickflip. This SLA applies only to the Software and the Services.
3.
Definitions
3.1.
Business Hours. “Business Hours” shall mean between the hours of nine (9) AM and five (5) PM Eastern Standard Time (EST), Monday through Friday.
3.2.
Failure Event. “Failure Event” shall mean unavailability of the Kickflip Service for fifteen (15) minutes or more. A Failure Event shall not include any image distribution delays or failures during any Maintenance Window.
3.3.
Maintenance Window. “Maintenance Window: shall mean a period scheduled by Kickflip with at least 72-hour advance Notification to Customer, not to exceed 8 hours per month, wherein Kickflip can perform Kickflip service maintenance tasks.
3.4.
Notification. “Notification” shall mean e-mail notification sent to or received from Customer to an agreed upon and predetermined Internet e-mail address. The standard Kickflip e-mail address for outbound notifications info@gokickflip.com. The standard Kickflip e-mail address for inbound notifications is info@gokickflip.com.
3.5.
Services. “Services” shall mean the Kickflip services as described in Appendix A (including all related software, intellectual property rights and all enhancements and improvements thereto) delivered by Kickflip to Customer and incorporated into the Customer Services.
3.6.
Uptime. “Uptime” shall mean the general availability of the Services in one (1) minute increments. Uptime will be measured by a calendar month period and calculated as follows: (total minutes Kickflip Service available in any calendar month) / ((total minutes in same calendar month) - (total Maintenance Window minutes actually used in same calendar month)).
3.7.
Monitoring. “Monitoring” shall mean the commercially reasonable methods for actively monitoring uptime for the provided Services.
4.
Uptime Commitment
Kickflip will deliver 99.8% Uptime for the Services as incorporated into the Customer services. Kickflip may use an external 3rd Party monitoring service for the Monitoring, including in order to track and report on Uptime.
5.
Performance Commitment
Kickflip guarantees that 99.5% of all Services will be delivered within a ten (10) seconds network round trip response time as measured by commercially reasonable methods. Network round trip response time is calculated from the time a network packet enters the Kickflip network external routers, travels through the network devices to the destination server(s), is serviced by the server(s), then travels back out through the network devices, and exits the Kickflip network external routers.
6.
Availability Commitment
Kickflip will make staff available for support during Business Hours and any Maintenance Window via telephone and e-mail.
7.
Communication Commitment
In the case of a Failure Event, the party that first identifies the Failure Event shall use all best efforts to notify the other party of the Failure Event as quickly as possible.
8.
Failure Event
In the case of a Failure Event, the party that first identifies the Failure Event shall use all best efforts to notify the other party of the Failure Event as quickly as possible.
(a)
In the case of a Failure Event, Kickflip shall use commercially reasonable efforts to identify the source of the Failure Event and resolve it as quickly as possible.
(b)
For each hour of inoperability resulting from a Failure Event, Kickflip will provide a credit to the Customer equal to one thirtieth (1/30) of the monthly fees payable by the Customer at the time of the Failure Event. In addition, if five (5) or more Failure Events occur during any month, no fee will be payable by Customer in relation to such month.
(c)
In the event that a reported Failure Event is (i) not a Failure Event but is a problem or situation that is caused by Customer or a Customer’s authorized user, or (ii) a Failure Event, but such Failure Event proves to be due to or the result of or caused by Customer or an Customer authorized user or a fault or problem with any Customer system or software (including third party software or hardware or other equipment), then, to the extent of the foregoing, the correction of such Failure Event by Kickflip shall not be included in the Fees, and Customer shall pay Kickflip its then current professional service rates to resolve such Failure Event within 30 days of the date of receipt of an invoice from Kickflip for same.
(d)
Customer shall provide Kickflip and its authorized personnel and agents with access to any Customer location or facility in accordance with any reasonable security procedures provided to Kickflip in writing in advance of such access that are in effect at the time of such access for the purposes of enabling Kickflip to resolve the Failure Event.
(e)
Customer shall provide Kickflip and its authorized personnel and agents with remote electronic access to any Customer data and/or Customer systems in accordance with any reasonable security procedures in effect (including, for certainty, any test or production system, as applicable) that is reasonably necessary for the purpose of enabling Kickflip to perform its obligations hereunder.