Terms of Service

In connection with the use of the Getit Products and Services (as defined below) you and/or your organization or corporation (the “Customer” or “Client”) and Getit Technologies Inc. (“Getit” or the “Company”) hereby agree to the terms of service and conditions contained herein (collectively, the “Terms of Service”).

BY ACCEPTING THE TERMS OF SERVICE EITHER BY: A) SIGNING THE ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THE TERMS OF SERVICE; OR B) USING, OR ACCESSING THE GETIT PRODUCTS AND SERVICES AFTER BEING MADE AWARE OF THESE TERMS OF SERVICE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO COMPLY WITH AND BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, INCLUDING THE COMPANY’S PRIVACY POLICY, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE AGREEMENT ENTERED INTO BETWEEN COMPANY AND THE CUSTOMER. IF, AFTER READING THE TERMS OF SERVICE, CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, CUSTOMER SHALL NOT USE OR ACCESS THE GETIT PRODUCTS AND SERVICES.

THESE TERMS OF SERVICE ARE SUBJECT TO CHANGE BY THE COMPANY IN ITS SOLE DISCRETION AT ANY TIME TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. When changes are made, the Company will update the "Last Updated" date at the bottom of these Terms of Service and make a new copy of the Terms of Service available on the Company’s website.

1. Definitions
1.1 In this Agreement:

(a)  “Agreement” means the Order Form, these Terms of Service and the Privacy Policy;

(b)  “Applicable Law” means with respect to each jurisdiction, all (a) laws, statutes, treaties, regulations, guidelines (or their equivalents); (b) orders, interpretations, licenses and permits; and (c) judgments, decrees, injunctions, writs, orders and similar actions by a court of competent jurisdiction; compliance with which is required or customarily observed in such jurisdiction;

(c)  “Customer” means the customer named in the applicable Order Form;

(d)  “Dashboard” means the Getit management dashboard provided by Company to Customer to streamline data management and order tracking, to which Customer is granted rights of access and use in accordance with this Agreement. As such, the Dashboard may be updated from time to time by Company in its sole discretion;

(e)  “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes, if any, that Company makes available to Customer or End User, as the case may be;

(f)  “End User” means a user of the Getit Products and Services;

(g)  “Fee” means any amount payable by the Customer to Getit in accordance with these Terms of Service and the applicable Order Form, including but not limited to the Subscription Fee, Merchant Service Fee and Getit Digital Fee;

(h)  “Getit Digital Fee” has the meaning given to it in the Order Form;

(i)  “Getit Products and Services” include, but may not be limited to: (a) mobile and web applications that enable merchants to provide their customers with quick secure payments, ordering capabilities, targeted digital marketing, and other digital services; (b) third-party processing of payments and remitting payment of Net Sales Proceeds to Customer’s bank account; (c) the Dashboard; and (d) working with Customer with respect to any End User inquiries related to Payments or placing orders;

(j)  “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses;

(k)  “Merchant Service Fee” has the meaning given to it in the Order Form;

(l)  “Net Sales Proceeds” is the amount the Customer receives from the Company for payments made through the Platform after all fees and expenses are deducted from the gross proceeds;

(m)  “Order Form” means (i) an electronic form provided by Company to Customer for ordering a Subscription, or (ii) a written document executed by Company and Customer in respect of Customer’s purchase of the Subscription from Company;

(n)  “Subscription” means the right granted by the Company to Customer to access and use the Getit Products and Services in accordance with this Agreement for the Subscription Term specified in the applicable Order Form;

(o)  “Subscription Fee” means the fee payable by Customer for a Subscription as set out in the Order Form; and

(p)  “Subscription Term” means the period of time that Customer is authorized by Company to access and use the Getit Products and Services.

2. RIGHT TO USE GETIT PRODUCTS AND SERVICES

2.1  Right to Use. Subject to the terms and conditions of this Agreement (including the applicable Order Form) and payment of the applicable Subscription Fees, Company hereby grants to Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to access and use the Getit Products and Services during the Subscription Term.

2.2  Reservation of Rights. Company shall own and retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Getit Products and Services and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be subject to all of the provisions of this Agreement. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.

2.3  Restrictions. Customer shall use the Getit Products and Services for internal business purposes as contemplated by the Terms of Service and shall not (and shall not allow End User or any third party to): (a) knowingly interfere with service to any of Company’s customers, users, hosts or networks, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (b) tamper with other customer accounts of Company, (c) attempt to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas or algorithm of the Getit Products and Services, except to the extent that enforcement is prohibited by applicable law; (d) sell, rent, lend, transfer, distribute, license, or grant any rights in the Getit Products and Services in any form to any third party without the written consent of Company; (e) remove any proprietary notices, labels, or marks from the Getit Products and Services; (f) use the Getit Products and Services to create, collect, transmit, store, use or process any End User data that: (i) Customer does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); and (g) upload any personal information, any financial information of any nature, or any other financial or personal information of Customer’s users that has been collected by Customer in contravention of any applicable data protection laws, or use the Getit Products and Services in violation of Company’s Privacy Policy.

2.4 Rights in Derivative Data. Company may collect data, information, records, files, material or other content from the Getit Products and Services, and (in each case) including all results from processing such data, including compilations, and derivative works thereof (“User-Related Content”). Customer grants Company a perpetual, transferrable, irrevocable, royalty-free, worldwide and sublicensable license to access, collect, store and use any such User-Related Content. To the extent User-Related Content contains any personally identifiable information, that data is handled in accordance with Company’s Privacy Policy. User-Related Content is not considered confidential or proprietary.

3. CUSTOMER RESPONSIBILITIES

3.1  Customer Information. Customer will provide Company with cooperation, assistance, data, and other requested information and items as applicable in a professional and timely manner for development of the Dashboard. Customer acknowledges that Company’s ability to provide the Dashboard and the Getit Products and Services as described in the Order Form may be affected if Customer does not provide reasonable assistance as set forth above.

3.2  Promotion. Customer will actively promote the Getit Products and Services through social media, featured newsletter promotion(s), Customer website, and any other means that are deemed appropriate for the duration of the Subscription Term.

3.3  Users. Customer is responsible for all activities that occur in its user accounts and for its End Users compliance with this Agreement and any terms of use applicable to the Getit Products and Services. Customer shall: (a) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Getit Products and Services and notify Company promptly of any such unauthorized access or use; and (b) use the Getit Products and Services only in accordance with the Documentation and applicable laws and government regulations. Customer is and shall fully remain liable for any breach of this Agreement due to any actions or inactions by its users.

3.4  Feedback. Customer may provide reasonable feedback to Company including but not limited to suitability, problem reports, suggestions, and any other information with respect to the Getit Products and Services (the “Feedback”). As such, Customer hereby grants to Company a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicensable, irrevocable, perpetual license to use or incorporate the Feedback into the Getit Products and Services and Documentation, or for any other purpose, any Feedback provided by Customer or End Users.

3.5  Security. Customer acknowledges that use of the Getit Products and Services will involve the transmission of data for the purposes of order tracking and data management over the internet and other networks, and that such transmission could potentially be accessed by unauthorized parties. Company is not responsible for any data that is delayed, lost, altered, intercepted or stored during transmission across networks not owned or operated by Company, including but not limited to the internet and Customer’s local network. Customer shall protect its authorized user login names and passwords from access or use by unauthorized parties, and is solely responsible for its failure to do so. Customer must promptly notify Company of any suspected security breach.

4. SERVICES, MAINTENANCE AND SUPPORT

4.1  Training. Company will provide all onboarding, Documentation, and training services to Customer in relation to the access and use of the Getit Products and Services pursuant to an Order Form and payment of the applicable Subscription Fees.

4.2  Maintenance. From time-to-time it may be necessary for the Company to perform scheduled or unscheduled repairs or maintenance. In the event that scheduled maintenance is anticipated, the Company will use reasonable efforts to: (i) notify Customer of the scheduled maintenance; and (ii) perform such scheduled maintenance during the period(s) of lowest anticipated usage of the Services. In the event that the Company releases updates to the downloadable applications used to access the Getit Products and Services, Customer acknowledges and agrees that such updates may be critical or mandatory in nature and may require Customer to download and install such updates in order to continue accessing the Getit Products and Services. CUSTOMER AGREES THAT THE COMPANY SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANY THIRD- PARTY FOR ANY INTERRUPTION, SUSPENSION OR TERMINATION OF ACCESS TO THE SERVICES OR FOR ANY LOSSES OR DAMAGES OF ANY KIND RESULTING FROM ACCESS TO THE SERVICES OR FOR ANY LOSSES OR DAMAGES OF ANY KIND RESULTING FROM CUSTOMER’S FAILURE TO DOWNLOAD AND INSTALL AN UPDATE.

4.3  Support. Company will provide Customer with support services and technical support for use of the Getit Products and Services for the duration of the Subscription Term. This technical support may also include support for bugs, errors, and any custom development (engineering) as required by Customer for the Getit Products and Services (the “Additional Support”). Additional Support will be provided to Company by Customer for a mutually agreed upon fee (exclusive to the Subscription Fee).

5. FEES AND PAYMENT

5.1  Fees and Payment Term. Customer shall pay the Fees specified in each Order Form or invoice. All Fees are quoted and payable in Canadian currency. Subscription Fees will be paid monthly. Except as otherwise specified herein or in an Order Form or invoice, Subscription Fees are based on the Subscription purchased and payment obligations are non-cancellable. Subscription Fees paid are non-refundable. The Company reserves the right to change the Subscription Fees upon thirty (30) days’ advance notice to the Customer, and Customer’s continued use of the Getit Products and Services following such change will be deemed an acceptance of the change unless the Customer otherwise terminates this Agreement prior to the effective date of such change.

5.2  Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, HST, GST, sales, value-added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on its income, property and employees.

5.3  Invoicing and Payment. Subscription Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, charges are due upon receipt of the invoice. Customer is responsible for maintaining complete and accurate billing and contact information with the Company.

5.4  Suspension for Non-Payment. Company may suspend Customer’s use of the Dashboard if Customer fails to make payment due in respect of the Subscription and does not cure such non-payment within three (3) business days after receiving notice of such failure. Any suspension of the rights hereunder by Company under the preceding sentence shall not excuse Customer from its obligation to make all payment(s) under this Agreement.

5.5 Disputing Fees. Customer is responsible for promptly and carefully reviewing amounts invoiced and its payment of Fees. In the event that Customer wishes to dispute any Fees charged to or paid by Customer under this Agreement, Customer must provide the Company with written notice of the dispute (the “Disputed Fees Notice”) by sending an email to support@geittechnologies.io within thirty (30) days of the date that the invoice at issue was made available by the Company (the “Dispute Timeframe”). Such Disputed Fees Notice should set out the nature of the dispute along with all available supporting documentation. In the event that Customer provides the Company with such a Disputed Fees Notice outside of the Dispute Timeframe, the Company shall have no obligation to investigate or effect any adjustments to the disputed Fees, and any voluntary efforts by the Company to assist Customer in investigating such disputed Fees shall not create any obligation to continue such investigation or any future investigation.

6. PAYMENT PROCESSING AND POS INTEGRATION

6.1  Technology Provider. Customer acknowledges that the Company is a technology provider. It is not a bank, credit union, payment processor or other financial institution. Payment processing services for users on the Platform are provided by third-party payment processors.

6.2  Authorization to Disburse Funds. Customer hereby authorizes the Company to hold, receive and disburse funds on its behalf and to transfer the funds to its bank account to effectuate payment to the Company of any Subscription Fees, and for Customer to receive any Net Sales Proceeds. Customer’s authorization permits the Company to generate a paper draft or an electronic funds transfer to process each Payment transaction that Customer authorizes. Customer’s authorization under this Section 6.2 will remain in full force and effect during the Subscription Term. Once Customer’s bank account information is verified, the Company will deposit the Net Sales Proceeds collected to Customer’s bank account.

6.3  Chargebacks. If Customer has not provided goods or services consistent with this Agreement with respect to a particular transaction(s), the Company will have the right to refuse to pay any Net Sales Proceeds to Customer and/or to pay a refund to any End User. There may be times when an End User may not be the authorized user of a credit card or the End User may otherwise contest the transaction. In these instances, the amount of a transaction may be reversed or charged back (a “Chargeback”) if the transaction (a) is disputed, (b) is reversed for any reason by our processor, or an End User or its financial institution, (c) was not authorized or we have any reason to believe that the transaction was not authorized, or (d) is allegedly unlawful, suspicious, or in violation of these terms. You agree to comply with the Chargeback process and to the liability associated with such Chargebacks.

6.4  Right to Adjust. The Company reserves the right to adjust the Net Sales Proceeds due for any period to compensate the Company for any Chargebacks, calculation errors, Customer employee fraudulent use, and any refunds paid to Customers, whether or not related to the period on which such adjustment is made, or to offset against such Net Sales Proceeds any other claim the Company may have arising hereunder. The Company may decide not to authorize or settle any transaction that Customer submits to the Company if the Company reasonably believes that the transaction is in violation of any Company agreement, or exposes Customer, End Users, or the Company to harm. Harm includes without limitation fraud, a violation of individual or proprietary rights and other criminal acts.

6.5  Applicable Law. The card processing networks require that Customer and the Company comply with all Applicable Law. The Company may modify this Agreement to comply with, and as a result of, amendments to Applicable Law.

6.6  POS Integrations. The Getit Products and Services can be integrated either:

(a)  directly into the Venue’s system through an application programming interface, or

(b)  into the Customer’s point of sale system (POS) through the POS third party integration partner;

(c)  if the Getit Products and Services are integrated into the POS, the Customer indemnifies Getit from and against any loss arising as a result of any act or omission of the Customer out of errors, defects or incorrect information in the POS and POS third party integration partner.

6.7  POS Software. If you are using a POS system that presently supports a Getit Platform integration, the Company grants you during the term of this Agreement a limited, royalty-free, non-exclusive, nontransferable license to the latest software solely for the purpose of powering such integration to the Platform (“POS software”) in order to permit Getit transactions, subject to the license terms contained herein. The Company, or such third parties as may be specifically identified within portions of the POS so ware, owns all legal right, title and interest in and to the POS software, and any updates to same that may be released in the future by the Company, including any intellectual property rights (including any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights). Except as expressly licensed to you herein, the Company reserves all such rights.

6.8  Responsibility for Fees Imposed by POS Provider. Many POS integrations may be self-installed by Customer via instructions provided by the Company. The Company will support, but is not responsible for, the physical installation or setup of any POS integration with the Platform. The Company is not responsible for any fees imposed by your POS provider, dealer, or other third party as a result of such integration, such as license fees, or professional services fees. The Company does not warrant compatibility of the Platform or with any POS system other than the presently supported POS systems. You are required to properly maintain the Getit software supporting your POS integration, including but not limited to performing all POS system updates, anti-virus updates, firewall maintenance, operating system updates and security patches, and you will be solely responsible for any and all losses incurred as the result of a failure to properly maintain such POS system.

6.9  Remote Access. Once Getit POS software is installed on your POS system, you authorize the Company to remotely access your POS system for the purposes of general maintenance, issue resolution, communication, and/or upgrades using so ware tools. Customer agrees to keep all Getit account and password information strictly confidential and further to limit those employees of Customer who may access such information. You agree to indemnify and hold harmless the Company for any loss resulting from another’s use of any Getit password or account, as may be applicable, either with or without your knowledge.

7. INTELLECTUAL PROPERTY

7.1  The Dashboard. Company retains all right, title, and interest in and to the Dashboard, Documentation, and Getit trademarks.

7.2  Trademarks. This Agreement does not authorize Customer to use Company’s name or any of its trademarks or service marks. Company may only use Customer’s name, trademarks, and service marks to the extent necessary to fulfill its obligations under these Terms of Service or as otherwise explicitly authorized in these Terms of Service.

7.3  Customer Data. As used within these terms of use, “Customer Data” means all information provided by Customer through the Services, including, but not limited to, menu data, catalogue data, account information and other information on Customer. As between the Company and Customer, the Customer owns Customer Data has sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Customer grants the Company and its parent, affiliate and subsidiary entities a worldwide, non-exclusive, royalty-free, transferable, fully paid up license to use, copy, modify, create derivative works of, display and transmit Customer Data in connection with providing and governing the Services. Customer is solely responsible for the Customer Data and the accuracy and legality thereof and warrants to the Company that it has all necessary rights to use such Customer Data in relation to the Services.

7.4  Usage Data. As used within these terms of use, “Usage Data” means information collected and analyzed by the Company relating to Customer and End Users’ interaction with and operation of the Services, including, but not limited to, time spent using the Services; browser types and language; internet protocol addresses; device-specific information, including hardware models, operating systems and versions, unique device identifiers, mobile network information, information about the location of the device and the location of customers in relation to Customer and the device, the device’s interaction and performance with our Services and Customer’s customers; peripheral hardware, other third-party services and identification of other software running in connection with the Services (strictly for the purposes of anti-fraud and malware prevention purposes). As between the Company and Customer, the Company owns Usage Data, and as such, the Company may use such data for its own legitimate purposes and may share such Application Usage Data with third-parties without notice to Customer.

7.5  Anonymized Data. Outside of providing Customer with the Services, the Company may aggregate, use, disclose, compile, distribute and publish statistical or analytical data regarding the Services, Customer Data and/or Usage Data in an aggregate and anonymized form only (the “Anonymized Data”) and may make such Anonymized Data publicly available, provided that such information does not directly identify any Confidential Information (as defined below). As between the Company and Merchant, the Company owns all such Anonymized Data.

8. CONFIDENTIAL INFORMATION

8.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Getit Products and Services and Documentation, Customer Data (which is the Confidential Information of the Customer), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

8.2  Confidentiality. Subject to Section 8.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Subscription Term and only as necessary to perform the Receiving Party’s obligations under this Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement. Customer shall not disclose any performance, benchmarking, or feature-related information about the Getit Products and Services.

8.3  Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

8.4  Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

9. LIMITED WARRANTIES AND DISCLAIMERS

9.1  Getit Warranties. Company hereby represents and warrants to Customer that:

(a)  During the Subscription Term, the Getit Products and Services will perform materially in accordance with the Documentation therefor; and

(b)  the Getit Products and Services l will not contain any Malicious Code.

9.2  Warranty Exclusions. The warranties set forth in Section 9.1 shall not apply if the Getit Products and Services are used on or in conjunction with hardware or programs other than what is described in the Documentation.

9.3  EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE GETIT PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE GETIT PRODUCTS AND SERVICES; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CUSTOMER DATA TRANSMITTED TO OR FROM COMPANY VIA THE GETIT PRODUCTS AND SERVICES AND/OR GETIT. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE GETIT PRODUCTS AND SERVICES AND/OR GETIT WILL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE GETIT PRODUCTS AND SERVICES AND/OR GETIT WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED. COMPANY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD- PARTY HOSTING PROVIDERS.

10. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

10.1  Indemnification by Company. Subject to this Agreement, Company shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the Getit Products and Services and Documentation as contemplated hereunder infringes the intellectual property rights of a third party (each an “Infringement Claim”); provided, that Customer (a) promptly gives written notice of the Infringement Claim to Company; (b) gives Company sole control of the defense and settlement of the Infringement Claim (provided that Company may not settle or defend any Infringement Claim unless it unconditionally releases Customer of all liability); and (c) provides to Company, at Company’s cost, all reasonable assistance and information.

10.2  Other Remedies. In response to an actual or potential infringement claim, if required by settlement or injunction or as Company determines necessary to avoid material liability, Company may at its option: (a) procure rights for Customer’s continued use of the Getit Products and Services, (b) replace or modify the allegedly infringing portion of the Getit Products and Services to avoid infringement without reducing the Getit Products and Services overall functionality, or (c) terminate the applicable Order Form and refund to Customer any prepaid, unused Subscription Fees for the terminated portion of the applicable Subscription Term.

10.3  Exclusions. Company’s obligations do not apply (a) to infringement resulting from Customer’s modification of the Getit Products and Services or use of the Getit Products and Services in combination with items not provided by Company, (b) to infringement resulting from use of a non- supported version of the Getit Products and Services, (c) to unauthorized use of the Getit Products and Services, or (d) if Customer settles or makes any admissions about a claim without Company’s prior consent.

10.4  Exclusive Remedies. This Section 10 sets out Customer’s exclusive remedy and Company’s entire liability regarding infringement of third-party intellectual property rights.

11. INDEMNIFICATION BY CUSTOMER

11.1 Customer shall defend, indemnify and hold Company harmless against any loss, damage, or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against Company by a third party (a) alleging that Customer’s use of the Getit Products and Services is in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; (b) based on a breach of any data protection laws or a breach of this Agreement; or (c) caused by any negligent act or omission of Customer or its employees, contractors or agents (each a “Customer Indemnified Claim”); provided, that Company (a) promptly gives written notice of the Customer Indemnified Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Customer Indemnified Claim (provided that Customer may not settle or defend any Customer Indemnified Claim unless it unconditionally releases Company of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance and information.

12. LIMITATION OF LIABILITY

12.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 12.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).

12.2  Limitation of Liability. SUBJECT TO SECTION 12.3 HEREOF, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

12.3  Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (IV) BODILY INJURY OR DEATH.

12.4  Application of Exclusions and Limitations. The foregoing limitations and exclusions of liability shall apply even if a party had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages and shall apply regardless of whether the action arose in contract, including, without limitation, from a fundamental breach, or breach of a condition, fundamental term or warranty, or in tort (including, without limitation negligence) or otherwise. The foregoing provisions limiting the liability of Company shall also apply to its officers, directors, employees, and agents as trust provisions for the benefit of such officers, directors, employees, and agents and shall be enforceable by such persons as trust beneficiaries

13. TERM AND TERMINATION

13.1  Subscription Term. The Subscription Term commences on the start date specified in the Order Form. Unless otherwise agreed upon in the applicable Order Form, the Subscription shall automatically renew for additional periods of one (1) month after the end of the initial Subscription Term unless Customer gives Company written notice of non-renewal at least thirty (30) days prior to the end of the applicable Subscription Term.

13.2  Termination. A party may terminate this Agreement or a Subscription for cause (i) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

14. GENERAL

14.1  Assignment. Customer may not transfer any of its rights or obligations under these this Agreement without Company’s prior written consent. Company may transfer any of its rights or obligations under this Agreement without Customer’s prior written consent.

14.2  Force Majeure. Neither Company nor Customer shall be deemed to be in default of any provision of this Agreement (other than Customer’s obligation to pay amounts due to Company hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, civil disturbance, strikes, epidemics or pandemics, fires or other catastrophes.

14.3  Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

14.4  Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.

14.5  Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of law principles. The courts located in the Province of Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each party hereby consents to the exclusive jurisdiction of such courts.

14.6  Entire Agreement. This Agreement is the entire agreement between Customer and Company in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written agreement with Company.

14.7  Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

14.8  Amendments. No amendment to any portion of this Agreement shall be binding upon the parties unless in writing signed by both parties. Notwithstanding the foregoing, (a) Company is entitled to make non-material changes to the Terms of Service without any notice to the Customer; and (b) except to the extent that Company is expressly prohibited by applicable law, Company further reserves the right to, within its sole discretion, make changes to this Agreement on a prospective basis, including to reflect changes in or required by law (including, changes to ensure the enforceability of this Agreement) or changes in business practices, by providing the Customer with reasonable notice of the change either electronically by posting notice of the change on Company’s website.

14.9  Additional Terms and Conditions. Neither Apple, Inc. (“Apple”) nor Google, Inc. (“Google”) (collectively, the “download service providers”) are parties to this Agreement nor will they have obligations with respect to the Getit Products and Services. Company, not Apple or Google, is solely responsible for the Getit Products and Services, including any maintenance and support, and the content thereof as set forth hereunder. However, the download service providers, along with their respective subsidiaries, are third-party beneficiaries of these Terms of Service. Upon acceptance of these Terms of Service, the download service provider used to obtain the Getit Products and Services will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against End User as a third-party beneficiary.

14.10  Language of Agreement. The parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non- officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.