Terms of Service
February 10, 2023
Please review these Pathway terms of service carefully. Once accepted, these Pathway terms of service become a binding legal commitment between you and Pathway. If you do not agree to be bound by this agreement, you should not accept this agreement, create an account, or use Pathway’s services or software.
Notwithstanding anything to the contrary, if you have a separate written agreement with Pathway for your use of the Software, these Pathway Terms of Service will not apply to you, unless that written agreement does not cover a particular Software, in which case, these Pathway Terms of Service apply solely to your use of that particular Software.
These Pathway Terms of Service, in combination with the terms of the sign up process (the “PURCHASE ORDER” or “PO”) on the Platform (as defined below), collectively form the contract (the “AGREEMENT”) and set forth the terms for your use of the Software and Platform (as defined below) and are effective as of the date you accept or otherwise agree to the terms of this Agreement (“EFFECTIVE DATE”). This Agreement is between Iterro Inc. operating as Pathway (“PATHWAY”) and you or the organization on whose behalf you are accepting or otherwise agreeing to the terms of this Agreement (hereinafter, the “CLIENT” or “YOU”/”YOUR”).
Pathway may update the terms of this Agreement from time to time. Pathway will provide you with written notice of any material updates at least thirty (30) days prior to the date the updated version of this Agreement is effective, unless such material updates result from changes in laws, regulations, or requirements from telecommunications providers. The updated version of this Agreement will be available at https://www.pathwayport.com/legal. Notices for material updates to the terms of this Agreement will be given to you. Following such notice, your continued use of the Software and/or Platform on or after the date the updated version of this Agreement is effective and binding, as indicated at the top of this Agreement, constitutes your acceptance of the updated version of this Agreement. The updated version of this Agreement supersedes all prior versions. If you do not agree to the updated version of this Agreement, you must stop using the Software and/or Platform immediately.
If you are the party that agreed to the terms of this Agreement and you reassign its account to a third-party reseller for administration purposes, such account reassignment will not excuse your obligations under this Agreement. Your use of the Software will continue to be subject to this Agreement.
Table of Contents
WHEREAS, Pathway wishes to license the use of certain Automated Client Management System Software, including Office Bot, Marketing Bot, Desk Bot, Mega Bot, Form Builder, Self-Service Kiosk, Self-Service Kiosk widget (collectively or individually the “SOFTWARE”) as being accessed by individual user or the end-user (the “AUTHORIZED USERS”) through the Pathway platform (the “PLATFORM”), including any updates, modifications, revisions, and third party products or services designed to interoperate with the Software.
AND WHEREAS, Client desires to use the Software from Pathway made available through the Platform.
NOW THEREFORE, the parties hereto (the “PARTIES”) agree as follows:
1. Effective Date
This Agreement shall be effective as of the Effective Date and shall remain in effect until otherwise terminated in accordance with the provisions of the Agreement outlined herein.
2. Selected Software and License Grants
- Subject to Client’s compliance with the terms, conditions and restrictions as set forth in this Agreement, Pathway grants Client, and its limited number of Authorized Users (as defined in the PO) a limited, non-transferable, and non-exclusive license to use those elements of the Software made available for use by Pathway and as identified in the PO as the selected Software (the “SELECTED SOFTWARE”), solely in machine-readable form, and solely for Client’s business of being an insurance broker, which shall include procuring and/or renewing insurance policies, for the limited use of the Authorized Users.
- Upon full payment of Fees, Pathway grants Client ownership of any extracted reports from the Selected Software, which Company may download, copy, distribute, modify and create derivative works of, subject to Pathway retaining ownership of all underlying Intellectual Property Rights in the reports.
- Subject to the limited rights expressly granted hereunder, Pathway reserves all rights, title and interest in and to the Platform and the Software, Pathway’s Confidential Information, and any feedback or suggestions Client or its Authorized Users provide regarding the Software or Platform, including all related Intellectual Property Rights. No rights are granted to Client hereunder other than as expressly set forth herein. For the purposes of this Agreement, "INTELLECTUAL PROPERTY RIGHTS" means all patents (including all reissues, divisions, continuations, and extensions thereof) and patent applications, trade names, trademarks, service marks, logos, trade dress, copyrights, trade secrets, mask works, rights in technology, know-how, rights in content (including performance and synchronization rights), unregistered design, or other intellectual property rights that are in each case protected under the laws of any governmental authority, whether or not registered, and all applications, renewals and extensions of the same, but exclusive of any confidential or proprietary information, trade secrets, or intellectual property of Client.
- Client acknowledges that the features and functions of the Software may change over time; provided, however, Pathway will not materially decrease the overall functionality of the Software.
3. Restrictions on Use
Except as otherwise expressly permitted under this Agreement, Client is not authorized to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Software or any portion thereof; (b) distribute, transfer, sublicense to, or otherwise make available the Software (or any portion thereof) to third parties, including, but not limited to, making the Software available (i) through resellers or other distributors; or (ii) as an application service provider, service bureau, or rental source; (c) create modifications to or derivative works of the Software or the content contained therein; (d) attempt to modify, alter, or circumvent the licence control and protection mechanisms within the Software; (e) use any information or articles including but not limited to, the newsletters outside of the Software, such as use on the Client’s own website; or (f) use or transmit the Software in violation of any applicable law, rule or regulation, including any data privacy laws or anti-spam laws.
Suspension of Services. Pathway may suspend its services to Client immediately upon written notice to Client for cause if Pathway, in good faith, determines: (a) that Client or its Authorized Users materially breach (or Pathway, in good faith, believes that Client or its Authorized Users have materially breached) any provision of this Agreement (including schedules hereto) or PO; (b) there is an unusual and material spike or increase in Client’s use of the Software and that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the Software; (c) that its provision of the Software is prohibited by applicable law or regulation; (d) there is any use of the Software by Client or its Authorized Users that threatens the security, integrity, or availability of the Software; or (e) that information in Client’s account is untrue, inaccurate, or incomplete. In any of these case, Client shall still remain responsible for the Fees.
In this paragraph, "SPAM" includes one or more unsolicited commercial electronic messages to which Canada‘s anti-spam legislation (“CASL”) or similar legislation applies, and derivations of the word "SPAM" have corresponding meanings. Pathway may immediately terminate any account that it determines, in its sole discretion, is transmitting or is otherwise connected with any "SPAM" or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated, Client agrees to pay Pathway liquidated damages of five dollars (U.S. $5.00) for each piece of "SPAM" or unsolicited bulk email transmitted from or otherwise connected with Client’s account or its users accounts. Otherwise, Client agrees to pay, and agrees to indemnify and hold Pathway harmless, for Pathway’s actual damages or penalties to the extent such actual damages can be reasonably calculated. Pathway reserves the right to block, reject, or remove what it considers to be "SPAM" or other unsolicited bulk email from the Software and/or Platform and Pathway shall have no liability for blocking any email considered to be “SPAM.”
4. Licenses by Client
- Client grants Pathway a limited-term license to copy, access, transmit and display the electronic data and information submitted by or for Client to the Software or collected and processed by or for Client using the Software (“Client’s Data”) for purposes set forth hereunder and otherwise generally for Pathway to provide the services contracted for hereunder. Pathway acquires no right, title or interest from Client under this Agreement in or to Client’s Data.
- By using any third party software, feature or widget on Pathway’s website, Client, on its behalf and on behalf of its users, hereby authorizes Pathway to share such Client’s Data, as has been provided by the Client or its user(s) in their use of the third party software, feature or widget, with such third party service provider. Client and/or its users hereby agree to have read and accept the third party’s terms and conditions as they apply to the Client and/or its users’ use of such third party services.
- Further, if the Selected Software is to be provided in the brand of the Client, the Client hereby provides its consent for Pathway to use and display the logo, name and other branding particulars of the Client (collectively, “Client Marks”) on all messages, articles, reminders and campaigns provided by the Selected Software. The Client hereby warrants that the Client has all authority and control over the selected branding elements, including the Client’s logo to permit the licensing contemplated herein.
- Notwithstanding anything in this Agreement to the contrary, Client authorizes Pathway to use deidentified and non-personal Client’s Data disclosed through Platform or Software usage or other data collection activities for product development purposes.
- So long as the Client remains a customer and/or client of Pathway, Client shall be deemed to have granted Pathway a license to use the Client Marks for Pathway’s marketing, research, business development and advertising purposes, including without limitation, in the emails, newsletters, marketing and advertising communications, social media, blog posts, website of Pathway.
- Pathway’s use of the Client Marks is a non-exclusive, non-transferable, revocable, limited license to use the Client Marks in accordance with the terms hereof. Any use of the Client Marks will not contain libelous, defamatory, obscene, abusive or otherwise unlawful material or material that infringes the rights of third parties, or material that disparages Client or otherwise impairs the goodwill associated with either Client or the Client Marks. Pathway further acknowledges Client’s exclusive rights in and to the Client Marks and the goodwill pertaining thereto. Pathway acknowledges that it has no right, title, license, or interest, express or implied, in and to the Client Marks, except for the limited license specifically provided in this Agreement. Pathway agrees that it shall not challenge or contest the validity of the Marks or Client’s ownership thereof or the validity of this Agreement, or engage in any act or assistance to any act which may infringe or lead to the infringement of any of the Client Marks. Pathway will use commercially reasonable efforts to comply with all reasonable Client Mark usage guidelines that Client may communicate in writing from time to time. Client reserves the right to audit the use of the Client Marks by Pathway upon reasonable prior written notice and in any reasonable manner, and Pathway agrees to provide Client with copies of any materials or other documents reasonably requested by Client in association with any such audit.
The Selected Software is delivered electronically, and delivery is deemed effective on the later of the Effective Date or the date that the applicable Fees are paid in full.
6. Pathway’s Obligations
Pathway shall during the Term of this Agreement:
- provide Client with timely support for the Selected Software, during regular business hours, at no additional cost to Client;
- employ reasonable efforts to ensure the Selected Software is available for use at minimum 99 percent of the time; and
- arrange, to the extent possible, for scheduled maintenance outside regular office hours.
Pathway shall comply with the Support Services and Service Levels set forth and made available here.
7. Responsibility for Data
The Client acknowledges that the source data used by Pathway within the Platform, the Office Bot, Marketing Bot, Desk Bot, Mega Bot, Form Builder, Self-Service Kiosk, Self-Service Kiosk widget software relies upon the Client providing access to accurate information in relation to their existing, former and/or potential clients. Pathway shall not independently verify, nor shall Pathway be responsible for the dissemination of inaccurate information through the Software, including without limitation information regarding effective insurance dates or renewal information, which was not accurate at the source, being the Client’s BMS. Client shall at all times be responsible for all information which is sent to the Client’s clients which is derived from the Clients information or the Client’s BMS, and the Client shall be liable, and hereby agrees to indemnify and hold Pathway harmless, for any losses or damages suffered by either the Client or Pathway as a result thereof.
Pathway shall comply with the Data Security Standards set forth and made available here.
The Client shall be responsible for the fees associated with the Selected Software as outlined within the PO (the “FEES”). If the Client uses any Software not set forth in the applicable PO, the Client will be charged the then applicable rates listed on Pathway’s website.
Fees are invoiced monthly and due in advance, each month of the Term on the day in which the Client first signed up for the Selected Software, via credit card for the Selected Software active for that month. Except as otherwise expressly set forth herein, payment obligations are non-cancelable and once paid, no refund or rebate shall be provided in the event that a Selected Software is cancelled at any time during the Term.
If Client’s account does not have sufficient funds or its credit card declines a charge for the Fees due, Pathway may suspend the provision of its services to all of Client’s accounts until the Fees due are paid in full. Client is prohibited from creating new accounts until the Fees due are paid in full.
All fees are exclusive of any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “TAXES”). Client will pay all Taxes associated with this Agreement, excluding any taxes based on Pathway’s net income, property, or employees. If Client is required by applicable law to withhold any Taxes from payments owed to Pathway, Client will reduce or eliminate such withheld Taxes upon receipt of the appropriate tax certificate or document provided by Pathway. Client will provide Pathway with proof of payment of any withheld Taxes to the appropriate authority.
9. Confidentiality Obligations
For the purposes of this Agreement, “CONFIDENTIAL INFORMATION” means any information disclosed, in any format, by one party (the “DISCLOSING PARTY”) to the other party (the “RECEIVING PARTY”) relating directly or indirectly to but is not limited to prototypes, trade secrets, intellectual property, information, technical data, research, products, software, services, development, macros, source code, unreleased software, inventions, ideas, processes, designs, drawings, engineering, marketing, markets, Personal Information, business plans, business policies or practices, forecasts or financial information, team process, design process, part supply, pricing, development process and procedures, disclosed by the Disclosing Party to the Receiving Party under this Agreement which at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential. Confidential Information shall include, but not be limited to, all materials marked as confidential information. The Confidential Information shall at all times remain the sole property of the Disclosing Party, and shall include any partial, and derivative information, insofar as the same are and remain Confidential Information of the Disclosing Party not generally known or available to the public, through no actions of the Receiving Party.
For purposes hereof, “PERMITTED PARTIES” means those employees, accountant’s and legal advisors of the Receiving Party for whom the confidential Information must be disclosed in the evaluation of the Purpose.
All disclosures of Confidential Information (whether written or oral) by either party shall (a) remain in confidence until the later of i) three (3) years from the date of disclosure, or ii) the expiry of this Agreement, save and except that any trade secrets or information with respect to the Disclosing Party’s products and/or research and development which shall remain confidential in perpetuity; (b) be disclosed only to Permitted Parties who are bound by obligations of confidentiality in favour of the Receiving Party with terms similar to or stronger than those contained herein; and (c) be reproduced or used by the Receiving Party only to the extent necessary for the offering or use of the Selected Software. The Receiving Party shall protect the Confidential Information with the same degree of care as it normally exercises to protect its own confidential information of similar nature, but at a minimum with a reasonable degree of care to prevent its unauthorized use, dissemination or publication. The Receiving Party pledges and agrees that it shall keep confidential any and all of the Confidential Information and other such matters arising hereto, and shall not disclose to any other person or persons, corporation, agent or consultant with whom it is or may be associated with, any Confidential Information without the express written permission of authorized officer of the Disclosing Party. The Receiving Party agrees to advise the Disclosing Party immediately in the event of an inadvertent or accidental disclosure of the Confidential Information or in the event of an electronic system breach.
All materials, including Confidential Information disclosed by the Disclosing Party under this Agreement shall remain the property of the Disclosing Party. Each party shall, upon the completion of this Agreement or at the request by the Disclosing Party, return all materials received or obtained under this Agreement, including Confidential Information, and all copies and all documents containing any portion of any Confidential Information, including a deletion of all electronic copies, including any back-up copies. Notwithstanding anything to the contrary contained above, the Confidential Information may be disclosed to the extent that such disclosure is necessary to comply with any law, regulation, or order of court, provided that the Receiving Party shall give the Disclosing Party reasonable advance notice of any such proposed disclosure (as legally permissible), and shall use its reasonable best efforts to secure an agreement in writing to be bound by the provisions of this Section 9 from any person obtaining access to the Confidential Information pursuant to this Section 9. The Receiving Party shall advise the Disclosing Party in writing of the manner of such disclosure. Information shall be deemed not to be confidential if such information is or becomes publicly known through no wrongful act of the Receiving Party, or is already known by the Receiving Party as evidenced by competent proof thereof, or is approved for release by the prior written approval of the Disclosing Party, or is rightfully received by the receiving party from a third party without restriction and without breach of this agreement, or is disclosed by the Disclosing Party to a third party without a similar restriction on the rights of such third party, or is independently developed by the receiving party without the use of the Confidential Information.
10. General Obligations
- The Parties acknowledge and agree to comply with all applicable legal obligations relating to the privacy, security, integrity, and confidentiality of all data and information used by the Software which enables identification of the retail or individual customer(s) (“PERSONAL INFORMATION”). The Parties further agree to collect, use and disclose Personal Information in accordance with the Personal Information Protection and Electronic Documents Act of Canada (“PIPEDA”), and all applicable laws governing the protection of personal information;
- Each Party shall, at a minimum, implement and maintain appropriate administrative, technical, and physical safeguards reasonably designed to: (i) ensure against any anticipated threats or hazards to the security or integrity of the Personal Information; and (ii) protect against unauthorized access to or use of the Personal Information; and
- Each Party may disclose Personal Information, as required, pursuant to any federal or provincial laws, and/or regulations. These provisions shall apply during the Term and after the termination of this Agreement.
- At all times, Client shall, and shall cause its users to, comply with their obligations under CASL or similar anti-spam legislation applicable to them. In the event of a breach thereof, Client agrees to indemnify and hold Pathway harmless from all damages, fines, losses and penalties incurred by Pathway as a result of such breach.
Each party agrees that, for a period of eighteen (18) months following ending of this Agreement, it shall not solicit to employ or enter a consulting arrangement with any of the officers, employees, directors or consultants of the other party which whom such party has had contact or were identified to such party in connection with the Software offered hereunder. The term “solicit to employ or enter into a consulting arrangement with” shall not be deemed to include generalized searches by the Client for employees or consultants through media advertisements, employment firms or otherwise, that are not focused on persons employed by or who consult for Pathway.
Subject to the terms contained within this paragraph, both parties acknowledge that compliance with the provisions of this Agreement is necessary to protect their proprietary interests. Each party further acknowledges that any unauthorized use or disclosure to any person or entity in breach of this Agreement may result in irreparable and continuing damage, and that each party shall be authorized and entitled to seek immediate injunctive relief and any other rights or remedies to which it may be entitled. If either party violates any of the terms contained within this Agreement, it acknowledges that money damages will be an inadequate remedy and that the violated party will be entitled to specific performance or to injunctive relief to prohibit the violating party from continuing to violate this agreement even if no money damages can be proven.
13. Representations and Warranties and Disclaimer
- Each party represents and warrants that it has validly accepted or entered into this Agreement and has the legal power to do so.
- Client represents and warrants that it has provided and will continue to provide adequate notices, and that it has obtained and will continue to obtain the necessary permissions and consents, to provide Client’s Data to Pathway for processing.
- WITHOUT LIMITING PATHWAY’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND PATHWAY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. PATHWAY ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO TELECOMMUNICATIONS PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE AND THAT PATHWAY WILL HAVE NO LIABILITY FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF CUSTOMER DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS PROVIDER’S NETWORK. BETA OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES AND PATHWAY WILL HAVE NO LIABILITY AND NO OBLIGATION TO INDEMNIFY FOR ANY BETA OFFERING WHATSOEVER.
14. Limitation of Liability
- Neither party shall be liable for any of the following losses or damages (whether or not foreseen, indirect, foreseeable, known or otherwise): (i) loss of profits (whether actual or anticipated), (ii) loss of revenue, (iii) loss of contracts, (iv) loss of anticipated savings, (v) loss of business, (vi) loss of opportunity, (vii) loss of goodwill, or (viii) any indirect, special, incidental, consequential, cover, lost data, business interruption, or punitive damages, whether an action is in contract or tort and regardless of the theory of liability, even if a party or its affiliates have been advised of the possibility of such damages or if a party’s or its affiliates’ remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.
- Pathway’s total aggregate liability arising out of or in connection with the performance or contemplated performance of the services hereunder (including without limitation under all Schedules hereto) (whether for tort (including negligence), breach of contract, breach of statutory duty or otherwise) shall in no event exceed the price paid or payable by Client to Pathway or its affiliates hereunder within the 12 month period immediately before the date of the event giving rise to Client’s claim. The foregoing limitation shall not apply to any breach of Confidentiality.
- Nothing contained in the Agreement shall exclude or limit either party’s liability for: (i) fraud or fraudulent misrepresentation; or (ii) any other matter for which it would be prohibited by applicable law to limit or exclude or attempt to limit or exclude liability. In all such cases a party’s liability shall be limited to the greatest extent permitted by applicable law.
- Access to the Software delivered via online systems is dependent on third parties, such as internet service providers. Pathway will have no liability to Client for any losses Client suffers resulting directly or indirectly from: (i) failures of performance on the part of Pathway’s internet service provider; (ii) failure of Client’s equipment or those of Client’s candidate(s) or third parties; (iii) reasons related to Pathways provision of scheduled system upgrades or maintenance; (iv) any security breach of Pathway’s system unless such breach is shown to be the result of Pathway’s negligence; or (v) inability to access the Pathway online system in any one country due exclusively to Pathway’s software or hardware for any period not exceeding (a) ten (10) consecutive hours or (b) an aggregate of more than twenty-four (24) hours in any calendar month.
- Indemnification by Pathway. Pathway will defend Client, its affiliates, and each of their directors, officers, and employees (collectively, “CLIENT INDEMNIFIED PARTIES”) from and against any claim, demand, suit, or proceeding made or brought against a Client Indemnified Party by a third party alleging that Pathway’s provision of the Selected Software infringes or misappropriates such third party’s intellectual property rights (“PATHWAY INDEMNIFIABLE CLAIM”). Pathway will indemnify Client from any fines, penalties, damages, attorneys’ fees, and costs awarded against a Client Indemnified Party or for settlement amounts approved by Pathway for a Pathway Indemnifiable Claim. If Pathway’s provision of the Selected Software has become, or in Pathway’s opinion is likely to become, the subject of any Pathway Indemnifiable Claim for third-party intellectual property rights infringement or misappropriation, Pathway may at its option and expense: (a) procure the right to continue to provide the Selected Software as set forth herein; (b) modify the Selected Software to make them non- infringing; or (c) if the foregoing options are not reasonably practicable, terminate this Agreement, or, if applicable, terminate the Selected Software that is the subject of any Pathway Indemnifiable Claim for third-party intellectual property rights infringement or misappropriation, and refund to the Client any unused pre-paid Fees.
- Limitations. Pathway will have no liability or obligation under this Section 15 with respect to any Pathway Indemnifiable Claim arising out of (a) Client’s use of the Software in breach of this Agreement; (b) the combination, operation, or use of the Software with other applications, portions of applications, products, or services where the Software would not by themselves be infringing; or (c) Software for which there is no charge.
- Indemnification by Client. Client will defend Pathway, its affiliates, and each of their directors, officers, and employees (collectively, “PATHWAY INDEMNIFIED PARTIES”) from and against any claim, demand, suit, or proceeding made or brought against a Pathway Indemnified Party by a third party alleging or arising out of Client or its Authorized Users’ (i) breach of this Agreement, (ii) provision of the Client’s Data to Pathway, or (iii) use of the Selected Software or the Platform, or arising out of a Client Application, including, without limitation, any claims that a Client Application, or Client or its Authorized Users’ use of a Client Application, infringes or misappropriates such third party’s intellectual property rights (collectively, “CLIENT INDEMNIFIABLE CLAIMS”). Client will indemnify Pathway from any fines, penalties, damages, attorneys’ fees, and costs awarded against a Pathway Indemnified Party or for settlement amounts that Client approves for a Client Indemnifiable Claim. For purposes hereof, “CLIENT APPLICATION” means any software application or service that Client makes available to its Authorized Users that interfaces with the Selected Software or Platform.
- Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“INDEMNIFIED PARTY”) will promptly notify the indemnifying party (“INDEMNIFYING PARTY”) of any Client Indemnifiable Claim or Pathway Indemnifiable Claim (individually or collectively referred to herein as a “CLAIM”) in writing; provided, however, that the failure to give prompt written notice will not relieve Indemnifying Party of its obligations hereunder, except to the extent that Indemnifying Party was actually and materially prejudiced by such failure; (b) Indemnifying Party will have the sole authority to defend or settle a Claim; and (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities hereunder, at Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, Indemnifying Party will not settle any Claim for which it has an obligation to indemnify under this Section 15 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party without Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.
- Exclusive Remedy. This Section 15 states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third-party claims.
This Agreement will commence on the Effective Date and continue until terminated in accordance with either of the following (“TERM”):
- For Convenience. Either party may terminate this Agreement for convenience by providing the other party with at least forty-eight (48) hours prior written notice.
- Non-Payment of Fees. Pathway may terminate this Agreement immediately due to the non-payment by the Client of any Fees, or by the breach of any provisions of this Agreement by the Client.
- Insolvency. Subject to applicable law, either party may terminate this Agreement immediately by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.
Upon Termination for any reason, the Client will cease to have access to any of the information or services offered by the Software. Notwithstanding the termination of this Agreement, terms contained within Sections 2, 3, 4, 7, 9, 10, 11, 14, 15 and 17 shall survive the termination of this Agreement.
- Assignment. Neither party hereto may assign or otherwise transfer this Agreement or any applicable PO, in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, Pathway may assign this Agreement or any applicable PO, in whole or in part, without consent to (a) a successor to all or part of its assets or business or (b) an affiliate. Any attempted assignment, delegation, or transfer by either party in violation hereof will be void. Subject to the foregoing, this Agreement and any applicable PO will be binding on the parties and their respective successors and permitted assigns.
- Relationship. Each party is an independent contractor in the performance of each and every part of this Agreement. Nothing in this Agreement is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities, damages, or debts of any type whatsoever that may arise on account of its activities, or those of its employees and agents, in the performance of this Agreement. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
- No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party (including Client’s Authorized Users or an affiliate) unless it expressly states that it does.
- Notices. Notices to Pathway will be provided via email to firstname.lastname@example.org. All notices to Client will be provided via email to the relevant contact(s) Client designates in its account.
- Governing Law. This Agreement will be governed by and interpreted according to the laws of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of laws and principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Any action arising out of this Agreement will be instituted in the courts of the city of Toronto and the parties hereby consent to the non-exclusive jurisdiction of these courts.
- Dispute Resolution. In the event of any dispute, claim, or controversy in connection with this Agreement (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, “DISPUTES”), each party’s representatives will, in good faith, attempt to resolve a Dispute. If the parties are unable to resolve a Dispute within thirty (30) days or within such other time period as the parties may agree in writing, then the parties may commence binding arbitration under the Ontario Arbitration Act. The parties will share equally the fees and expenses of the arbitrator. The arbitration will be conducted by a sole arbitrator mutually agreed to between the parties or, failing that, by the ADR Institute of Ontario under its then prevailing rules. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in the English language in the City of Toronto.
- Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster (collectively, “FORCE MAJEURE EVENTS”). The party affected by a Force Majeure Event will take all reasonable actions to minimize the consequences of any such event.
- Waiver. No failure or delay by either party in exercising any right or enforcing any provision under this Agreement will constitute a waiver of that right or provision, or any other provision.
- Headings. Titles and headings of sections of this Agreement are for convenience only and will not affect the construction of any provision of this Agreement.
- Severability. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect.
- Entire Agreement. This Agreement (including all exhibits and attachments hereto) will constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, proposals, statements, sales materials, presentations, or non-disclosure or other agreements, whether oral or written. No oral or written information or advice given by Pathway, its agents, or its employees will create a warranty or in any way increase the scope of the warranties or obligations in this Agreement.