BY USING THE REFINED DATA POD(S) (DEFINED BELOW), CLIENT AGREES THAT ONTARIO LAW GOVERNS CLIENT USE OF THE REFINED DATA POD(S) IF CLIENT OBTAINS AN AGREEMENT FOR THE USE OF THE REFINED DATA POD(S), AND TO THE TERMS REGARDING GOVERNING LAW AND VENUE SET FORTH IN SECTION 17 (GOVERNING LAW).
CLIENT AGREES THAT THIS AGREEMENT (DEFINED BELOW) IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CLIENT. THIS AGREEMENT IS ENFORCEABLE AGAINST CLIENT AND ANY LEGAL ENTITY ON WHOSE BEHALF THE REFINED DATA POD(S) OR ASSOCIATED SOFTWARE SERVICE IS USED. CLIENT MAY HAVE ANOTHER WRITTEN AGREEMENT DIRECTLY WITH REFINED DATA THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.
“Adobe” means Adobe Systems Incorporated, a Delaware corporation, 345 Park Avenue, San Jose, California 95110.
“Adobe Service” means individually and collectively, the Adobe® Connect™ family of services.
“Agreement” means these terms and conditions herein and the License Metrics.
“Appointee” shall have the meaning set forth in Section 2.4 (Appointments).
“Content” means all audio, video, multimedia, data, text, images, documents, computer programs, and any other information or materials uploaded by or on behalf of Client in connection with Client’s use of any Refined Data Pod(s) or other software.
“Client” means the person identified on page 1 of this document.
“Information” means personally identifiable information.
“License Metrics” means terms set forth in separate writing (such as a quote or order form) describing the scope of Client’s right to use the Refined Data Pod(s). The License Metrics are incorporated by reference into this Agreement.
“Meeting” means an Adobe® Connect™ Hosted meeting, classroom, seminar, or webcast, as applicable.
“Meeting Attendees” means individuals who attend an online meeting, classroom, telephone conference, seminar, or webcast enabled by the Adobe Service and hosted by Client.
“Participant” means a third party, including Meeting Attendees and Appointees, who interact with the Adobe Service or the Refined Data Pod(s) as a result of such party’s relationship with or connection to Client.
“Refined Data” means Refined Data Solutions, Inc. an Ontario corporation, with offices at 88B East Beaver Creek Road, Richmond Hill, Ontario, Canada, L4B 4W2.
“Refined Data Pod” means any Refined Data Adobe® Connect™ Extension Software, or related service or Applications Programming Interface (“API”) manufactured by Refined Data Solutions Inc. that may be provided to Client by Refined Data in connection with its use of the Adobe Service, and any modified versions and copies of, and upgrades, updates and additions to such software, provided to Client by Refined Data at any time. The Refined Data Pod is client software, service, or software as a service, delivered to Client on a trial or purchased basis so that Client may use or enhance certain features of the Adobe Service. The scope of this Agreement is limited to the chosen application(s) used by the client.
“Software Service” means any Refined Data software used to collect and store or retrieve information generated from a Refined Data Pod.
“Software Service Term” means the period of time for which Client has elected to pay for and/or use the Refined Data Pod(s) or any related Software Service.
2. Use of Refined Data Pod(s)
2.1 Authority to Use the Refined Data Pod(s). Client represents and warrants that Client has all necessary right, power and authority to enter into this Agreement and to perform the acts required of Client hereunder including having a valid license to use the software applications that generate Content, and the right to submit Content and its or a Participant’s Information in connection with use of the Refined Data Pod(s). Otherwise, Client is not permitted to submit such Content or Information to the Refined Data Pod(s).
2.2 Access to the Refined Data Pod(s). Client acknowledges that its ability to access and use the Refined Data Pod(s) will require access to the Adobe Service and may also require the payment of third party fees (such as telephone toll charges, ISP, or airtime charges, or charges associated with the Adobe Service) and that Client is responsible for paying such fees. Refined Data is not responsible for any equipment or third party services Client may need to be able to access and use the Refined Data Pod(s).
2.3 Log-In Information. To gain access to and use the Refined Data Pod(s) or associated Software Service, Client may be required to create a log-in ID and password (“Log-In Information”). Client is responsible for all activity occurring under its Log-In Information, and Client must keep its Log-In Information confidential and not share its Log-In Information with third parties. Refined Data has no obligation or responsibility with regard to its use, distribution, disclosure, or management of Log-In Information. Notwithstanding the foregoing, Refined Data may require Client to change its Log-In Information if such Log-In Information is inconsistent with the terms of this Agreement.
2.4 Appointments. Client may appoint individuals within its organization or other third parties to administer various functions of the Refined Data Pod(s) (“Appointees”), as applicable. Notwithstanding anything to the contrary set forth in Section 2.3 (Log-In Information) of the Agreement, Client may, if applicable, provide to Appointees specific Log-In Information for the sole purpose of enabling such Appointee to administer various functions of the Refined Data Pod(s) in accordance with the terms of this Agreement. Client is solely responsible for all acts or omissions of Appointees in connection with use of the Refined Data Pod(s).
2.5 Limitations. Without limiting the foregoing, the Refined Data Pod(s) are not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, Refined Data, its affiliates, suppliers, licensors, and resellers specifically disclaim any express or implied warranty of fitness for such purposes.
3.1 The Refined Data Pod(s). Subject to its compliance with the terms and conditions of this Agreement, Refined Data grants to Client a non-exclusive, non-transferable, revocable right to access and use the Refined Data Pod(s) according to the terms and conditions of this Agreement and the applicable License Metrics.
3.2 License. Subject to the terms and conditions of the Agreement, Refined Data grants to Client a non-exclusive, non-transferable, revocable license to install and use the Refined Data Pod(s) on a single Adobe Connect Hosted Account or a single Adobe Connect Licensed deployment, solely in conjunction with the Adobe Service. Client shall not modify, port, adapt or translate the Refined Data Pod(s). Client shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Refined Data Pod(s). Client cannot use the Refined Data Pod(s) on a timeshare or service bureau basis or host, on a subscription basis or otherwise, or use the Refined Data Pod(s) to utilize any functionality of the Adobe Service for a third party.
4. Ownership of Refined Data Pod(s) and Marks
Client acknowledges that Refined Data and its licensors own all right, title, and interest in: (a) any Refined Data Software Service; (b) any Refined Data Pod(s) provided in connection with the Adobe Service; and (c) all graphics, logos, service marks, and trade names, including third-party names, product names, and brand names used by Refined Data in connection with the Refined Data Pod(s) (the “Marks”). Client shall not alter or remove any Marks or Refined Data copyright notices. Notwithstanding the foregoing, Client, Appointees, or its respective licensors, as applicable, own all right, title, and interest in and to any graphics, logos, service marks, and trade names used by Client or Appointees, as applicable, in connection with use of the Refined Data Pod(s). Client is welcome to send suggestions on improving the Refined Data Pod(s), but in doing so, Client acknowledges and agrees that such suggestions will become the property of Refined Data, and Refined Data has no obligation to compensate Client for such suggestions.
It is the express wish of the Parties that the Agreement and all related documents have been drawn up in English and that the English version of this Agreement shall be the sole version used in interpreting and enforcing this Agreement.
6. Terms and Termination
6.1 Term. The term of this Agreement is for a period of one year from the effective date, subject to consideration of continuation of some or all of the products and services for the duration of a 1-year period. This Agreement is renewable on an annual basis, by the Client, as long as the Client account is in good standing on the date of the renewal, and the Agreement is not cancelled by Refined Data subject to section 6.2 below.
6.2.1 By Refined Data. Refined Data may at any time, after the one year anniversary, or subject anniversaries if renewed and upon written notice to Client immediately terminate this Agreement and its access to the Refined Data Pod(s) or associated software, or suspend or restrict its access to the Refined Data Pod(s) or associated software in whole or in part, if:
(a) Client breaches this Agreement and does not cure such breach within five (5) business days of receiving written notice of the breach from Refined Data;
(b) Client breaches Section 3 (License) or Section 4 (Ownership of the Refined Data Pod(s) and Marks) of this Agreement; or
(c) Refined Data determines in its sole and exclusive judgment that terminating its access to the Refined Data Pod(s) is advisable for security reasons, or to protect Refined Data from liability.
6.2.2 By Client. Client may terminate this Agreement or its subscription to the Refined Data Pod(s) at any time for any reason or no reason, by contacting Refined Data customer service.
6.3 Effect of Termination. Upon termination of this Agreement, Client must immediately cease using the Refined Data Pod(s). Refined Data reserves the right to delete any data files associated with Content, Information, or its use of the Refined Data Pod(s) upon termination of the use of the Refined Data Pod(s). The following Sections of this Agreement shall survive termination of this Agreement: 1, 4, 6.3, 7-12, and 14-18.
7.1 Client Content. Client may upload Content to the Refined Data Pod(s) in connection with its use of the Refined Data Pod(s). Refined Data does not verify, endorse, or claim ownership of any Content, and Client retains all right, title, and interest in and to the Content. Client is solely responsible for Content including making and keeping backup copies of Content. Notwithstanding anything to the contrary herein, Refined Data has no responsibility or liability for the deletion or accuracy of Content, the failure to store, transmit or receive transmission of Content (whether or not processed by the Refined Data Pod(s)), or the security, privacy, storage, or transmission of other communications originating with or involving use of the Refined Data Pod(s). Client is solely responsible for applying the appropriate level of access to its Content.
7.2 Client Representations and Warranties Regarding Content. Client represents and warrants that (a) Client is the owner, licensor, or authorized user of all Content; and (b) Client will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that: (i) advocates, promotes, incites, instructs, assists or otherwise encourages violence or any illegal activities; (ii) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or Refined Data, or any rights of publicity or privacy of any party; (iii) attempts to mislead others about its identity or the origin of a message or other communication, or impersonates or otherwise misrepresents its affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iv) promotes, solicits or comprises inappropriate, harassing, abusive, profane, defamatory, libelous, threatening, hateful, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (v) is harmful to minors; (vi) contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, Information, or property of another; or (vii) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising).
7.3 Refined Data Access to Content. Refined Data personnel will not access, view, or listen to any Content, except as reasonably necessary to support the normal operation of the Refined Data Pod(s), including but not limited to the following: (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, or technical issues; (c) as deemed necessary or advisable by Refined Data in good faith to conform to legal requirements or comply with legal process; or (d) enforce this Agreement, including investigation of potential violations hereof, as further described in Section 11 (Investigations).
8. Notification of Copyright Infringement
8.1 Refined Data respects intellectual property rights and expects its users to do the same. We will investigate any notifications of copyright infringement of a Refined Data Pod.
9. Links and Online Services
9.1 Links. Refined Data may provide links to other Web sites or resources as part of the Refined Data Pod(s) as a convenience to Client. Refined Data is not responsible for the contents, products or services on any third party site, and the inclusion of any link does not imply that Refined Data endorses the content on such third party sites. Client may visit such third party sites solely at its own risk.
9.2 Online Services.
9.2.1 The Refined Data Pod(s) may facilitate access to APIs or other websites maintained by Refined Data or its affiliates or third parties offering services (e.g., usage reporting services) (“Online Services”). Client’s access to and use of any website or online services is governed by the terms, conditions, disclaimers and notices found on such site or otherwise associated with such services. Refined Data may at any time, for any reason, modify or discontinue the availability of any website and Online Services.
9.2.2 Refined Data does not control, endorse or accept responsibility for websites or Online Services offered by third parties. Any dealings between Client and any third party in connection with a website or Online Services, including delivery of and payment for goods and services and any other terms, conditions, warranties or representations associated with such dealings, are solely between Client and such third party.
9.2.3 EXCEPT AS EXPRESSLY AGREED BY REFINED DATA OR ITS AFFILIATES OR A THIRD PARTY IN A SEPARATE AGREEMENT, CLIENT USE OF WEBSITES AND ONLINE SERVICES AND SOFTWARE PRODUCTS IS AT CLIENTS OWN RISK UNDER THE WARRANTY AND LIABILITY LIMITATIONS OF SECTIONS 15 (DISCLAIMER OF WARRANTIES) AND 16 (LIMITATION OF LIABILITY).
10.1 Use Restrictions. In connection with Client access or use of the Refined Data Pod(s), Client agrees not to:
(a) introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of a third party’s computer or property or information;
(b) use the Refined Data Pod(s) in any manner that could damage, disable, overburden, or impair any server, or the network(s) connected to any server or interfere with any other party’s use and enjoyment of the Software Service or Adobe Service;
(c) host, on a subscription, membership, or pay-per-use basis or otherwise, the Refined Data Pod(s), including any related application to permit a third party to use the Refined Data Pod(s) to create, transmit, or protect any content;
(d) engage in any systematic extraction of data or data fields, including without limitation e-mail addresses;
(e) disclose, harvest, or otherwise collect Information, including e-mail addresses, or other private information about any third party without that party’s express consent;
(f) transmit junk mail, spam, surveys, contests, pyramid schemes, chain letters, or other unsolicited e-mail or duplicative messages;
(g) sell, resell, lend, lease, or rent access to or use of the Refined Data Pod(s), or otherwise transfer any rights to use or access the Refined Data Pod(s) (including without limitation, on a subscription, membership, pay-per-use, time share, computer service business, or service bureau basis);
(h) bundle or incorporate the Refined Data Pod(s) with or into any other service, offering, or solution for sale, resale, rent, or lease to third parties;
(i) defraud, defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
(j) upload, or otherwise make available, files that contain images, photographs, software, or other material protected by intellectual property laws, including, for example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless Client owns or controls the rights thereto or has received all necessary consent to do the same; or
(k) use the Refined Data Pod(s) for malicious injection of dial tone multi-frequency (“DTMF”) commands.
10.2 Exposure. Client acknowledges and agrees that by accessing or using the Refined Data Pod(s), Client may be exposed to materials from third parties that are offensive, indecent, or otherwise objectionable. Client may report any violations of these terms to Refined Data customer service.
Refined Data is entitled, except to the extent prohibited by applicable law, to disclose any information, including Information, about Client in Refined Data’s possession in connection with Client’s use of the Refined Data Pod(s) to law enforcement or other government officials, as Refined Data in its sole discretion believes to be necessary or appropriate. Client agrees to indemnify and hold Refined Data harmless from and against any and all liabilities, costs and expenses, including reasonable attorneys’ fees, related to or arising from Client’s Content, the Content of Participants, and Client or any Participant’s use of the Refined Data Pod(s), including any use that violates this Agreement.
12.2 Non-U.S. Residents. Client agrees and acknowledges that Client’s Information collected through the Refined Data Pod(s) or in connection with the Refined Data Pod(s) may be transferred across national boundaries and stored and processed in any of the countries around the world in which Refined Data maintains offices, including the United States.
12.3.1 Refined Data Pod Use Information. Refined Data may collect information regarding Client and Participant use of the Refined Data Pod(s), such as the name of the Internet service provider and the Internet Protocol address through which Participant accesses the Internet; the time Participant accesses the Refined Data Pod(s); information about your computer environment including but not limited to details on your operating system, camera and microphone devices, monitor size and the Internet address of any referring Web site and the Internet address of the Web site from which Participant linked directly to the Refined Data Pod(s). Refined Data uses this information to support the development of the Refined Data Pod(s) and, if Client has opted-in to receive communications from Refined Data, to send to Client communications about Refined Data, its products and services.
12.3.2 Information Collected with the Refined Data Pod(s). The Refined Data Pod(s) may collect certain information, including but not limited to: (a) the location of Meeting Attendees; (b) Participant answers to polls initiated by Client or an Appointee, if applicable; (c) real time data communicated between users of the Refined Data Pod(s) and between users and Client or Appointee(s); and (d) any other information Participants provide to the Refined Data Pod(s), either on Participant’s own accord or as requested by an Appointee(s), such as Participant’s name, address, phone number, e-mail address, or any other personally identifying information. The Refined Data Pod(s) will record such information. Client and Appointees may see such information, and some information, such as data, may be shared with and stored by other users of the Refined Data Pod(s) at the request of Client or an Appointee(s) or as an automatic function of the Refined Data Pod(s). Except as otherwise stated in Section 11 (Investigations), Refined Data does not share Client Information with any other third parties.
12.4 Notice Regarding Recording and Privacy. THE ADOBE CONNECT PRO SERVICE AND REFINED DATA POD(S) MAY ALLOW CLIENT OR AN APPOINTEE(S) TO RECORD MEETINGS AND TO COLLECT AND UTILIZE IDENTIFYING INFORMATION ABOUT CLIENT AND PARTICIPANTS, SUCH AS PARTICIPANT’S NAME, VOICE, OR LIKENESS. THE LAWS OF SOME STATES OR COUNTRIES REQUIRE (A) A PARTICIPANT TO GRANT HIS/HER CONSENT PRIOR TO ANY RECORDING OF COMMUNICATIONS; AND (B) RESTRICTIONS ON THE COLLECTION, STORAGE, AND USE OF PERSONALLY IDENTIFYING INFORMATION. Client is responsible for ensuring collection of all such consents and compliance with all such restrictions, and therefore Client shall indemnify, defend, and hold Refined Data harmless from any claim or suit connected to recordings by Client or Appointee(s) of the communications and likeness of Participants.
12.5 Storage and Use of Information. Refined Data stores Client Information and the Information of Participants in accordance with Refined Data’s then-current storage policies and as requested by Client or Appointee(s). Refined Data will delete Client Information and Information of Meeting Attendees and other Participants from Refined Data’s servers ultimately when this Agreement terminates and in accordance with Refined Data’s then-current data storage policies.
12.7 Communications from Refined Data.
12.7.1 Service E-Mails. Notwithstanding any communications preferences indicated by Client, Refined Data may send to Client service-related e-mails regarding service maintenance events or modifications to the functionality of the Refined Data Pod(s) or delivery of a service related to a Refined Data Pod.
12.7.2 Communications from Refined Data to Trial Users. THE TERMS OF THIS SECTION 12.7.2 (COMMUNICATIONS FROM REFINED DATA TO TRIAL USERS) APPLIES TO CLIENT SOLELY IF CLIENT HAS SUBSCRIBED TO THE REFINED DATA POD(S) ON A TRIAL BASIS. NOTWITHSTANDING ANY COMMUNICATIONS PREFERENCES INDICATED BY CLIENT IN CONNECTION WITH CLIENT CREATION OF LOG-IN INFORMATION OR OTHERWISE, CLIENT AGREES THAT REFINED DATA MAY CONTACT CLIENT REGARDING THE REFINED DATA POD(S) DURING THE TERM OF CLIENT TRIAL SUBSCRIPTION.
12.8 Information of Participants. As between Refined Data and Client, Client shall have sole responsibility for any and all Information of Participants used and submitted in connection with the use of the Refined Data Pod(s), and Refined Data shall have no responsibility in connection thereto. Client shall comply with all data protection and privacy laws and rules applicable to Information of Participants. Client shall defend, indemnify, and hold harmless Refined Data from any claim, suit or proceeding brought against Refined Data by a Participant in connection with any acts or omissions with regards to such Information of Participants. E-mails related to the Refined Data Pod(s) are generally sent to Participants by Client and not by Refined Data. As a result, even though certain Participants may have opted-out from receiving communications from Refined Data, such Participants may receive certain service-related e-mails sent by Client.
13. Service Level Agreement
13.1 Service Availability Objective. Refined Data’s objective is to make reasonable efforts to provide Service Availability of 99.5% as measured on a monthly basis (“Service Availability Objective”) for Software Services that support the Refined Data Pod(s). Service Availability is defined as the time that the Software Service is capable of receiving, processing, and responding to requests, excluding (a) Scheduled Maintenance, (b) Customer Error Incidents, and (c) Force Majeure. Software Service Availability is calculated as a percentage by dividing the number of minutes the Software Service is available during the applicable month by the number of total minutes in the applicable month, excluding in all cases Scheduled Maintenance, Customer Error Incidents, and Force Majeure.
13.2.1 Scheduled Maintenance is defined as any maintenance performed during Refined Data’s standard maintenance windows (currently occurring between Saturday 12:01am Eastern Standard Time and Sunday at 11:59pm Eastern Standard Time, and weekdays between 9:00pm Eastern Standard Time and 11:59pm Eastern Standard Time) and any other maintenance of which Client is given at least forty-eight (48) hours advance notice. Refined Data may perform maintenance on some or all of the Software Service supporting a Refined Data Pod(s) in order to upgrade hardware or software that operates or supports the Refined Data Pod(s), implement security measures, or address any other issues it deems appropriate for the continued operation of the Software Service supporting the Refined Data Pod(s).
13.2.2 Customer Error Incident is defined as any Refined Data Pod(s) unavailability resulting from Client’s applications, Content, or Client’s equipment, or the acts or omissions of any user of the Refined Data Pod(s).
13.2.3 Force Majeure is defined as acts of God, terrorism, labor action, fire, flood, earthquake, governmental acts, orders, or restrictions, denial of service attacks and other malicious conduct, utility failures, or any other cause of Refined Data Pod(s) unavailability that was beyond Refined Data’s reasonable control.
14. Payment Terms
14.1 Fees. Use of the Refined Data Pod(s) is subject to Client’s payment of fees (the “Subscription Fees” or “Usage fees”), which may vary according to the payment option to which Client has subscribed and/or the period of time for which Client has elected to pay for the use of the Refined Data Pod(s) (the “Term”).
Refined Data will collect the Fees for use of the Refined Data Pod(s) including Telephony Charges billed monthly in arrears. Client’s credit card company or bank may impose on Client other fees in connection with Client’s payment of the Fees, and Refined Data has no connection to or responsibility for such fees.
14.2 Non-refundable Fees. All Fees paid by Client in relation to this Agreement for the use of the Refined Data Pod(s) are non-refundable.
14.3 Changes in Price and/or Terms. Refined Data may at any time, upon notice required by applicable law, (a) change the price of fees for the Refined Data Pod(s) or any part thereof, (b) institute new charges or fees, or (c) change this Agreement. Price and Agreement changes and institution of new charges implemented during Client’s Term will apply to subsequent Terms and to all new subscribers after the effective date of the change. If Client does not agree to any such changes, then Client must terminate Client’s Agreement with Refined Data and stop using the Refined Data Pod(s). Client’s continued use of the Refined Data Pod(s) after the effective date of any such change shall constitute Client’s acceptance of such change.
14.4 Collection of Refined Data Pod Fees. Client agrees that in the event Refined Data is unable to collect the Fees owed by Client to Refined Data for the Refined Data Pod(s) and telephony, Refined Data may take the steps it deems necessary to collect such Fees from Client and that Client will be responsible for all costs and expenses incurred by Refined Data in connection with such collection activity.
Payments are due 30 days after the date of the invoice. Late payments will be subject to a late payment penalty of 1.50% per month or the highest rate allowed by law whichever is less.
15. Disclaimer of Warranties
15.1 THE REFINED DATA POD(S) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, REFINED DATA, ITS AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, RESELLERS, LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE REFINED DATA POD(S) DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, REFINED DATA DOES NOT WARRANT OR REPRESENT THAT THE REFINED DATA POD(S) WILL BE, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE, OR THAT REFINED DATA’S SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT REFINED DATA’S SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR CONTENT BY THIRD PARTIES.
15.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CLIENT. THIS WARRANTY GIVES CLIENT SPECIFIC LEGAL RIGHTS AND CLIENT MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
16. Limitation of Liability
16.1 NEITHER REFINED DATA NOR ITS SUPPLIERS SHALL BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE REFINED DATA POD(S) OR ANY SOFTWARE OR ACCESS DATA, INFORMATION OR CONTENT, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE REFINED DATA POD(S) OR ANY SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF REFINED DATA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
16.2 REFINED DATA’S TOTAL LIABILITY TO CLIENT FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR THE USE OF THE REFINED DATA POD(S) IN THE LAST TWELVE (12) MONTHS, IF ANY. CLIENT AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE REFINED DATA POD(S) MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. REFINED DATA’S SUPPLIERS SHALL HAVE NO LIABILITY TO CLIENT FOR ANY REASON.
16.3 THE LIMITATIONS ON LIABILITY IN THIS SECTION 16 (LIMITATIONS OF LIABILITY) ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CLIENT AND CLIENT MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
17. Governing Law
By accessing and using the Refined Data Pod(s), Client and Refined Data agree that all matters relating to this Agreement and Client’s access to, or use of, the Refined Data Pod(s) shall be governed by and construed in accordance with the substantive laws in force in the Province of Ontario, with venue in Toronto. This Agreement will not be governed by the conflict of law rules of any jurisdiction, UCITA, or the United Nations Convention on Contracts for the International Sale of Goods, the application of which are expressly excluded.
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