Web Application’s Terms of Service
In this Agreement, Customer and Tuio may be individually referred to as “Party” and collectively referred to as the “Parties.”
This Agreement applies to the Customer’s use of the Services (as defined below) which are made available by Tuio through its proprietary web application platform located at https://app.tuiopay.com (the “App”). Tuio may change or revise this Agreement from time to time in its sole discretion, with or without notice to Customer. Customer is bound by any such revisions and should therefore periodically check and review the then-current Terms of Service at https://tuiopay.com/app-terms-of-service-customers/. Customer’s access and use of the App and Service will be subject to the most current version of the Agreement. Customer’s use of the App after such revised Agreement is updated at https://tuiopay.com/app-terms-of-service-customers/ will signify Customer’s acceptance of such revised Agreement and Customer’s agreement to be bound by it. By accessing, visiting, or using the App and/or its related Services, the Customer agrees to the terms set forth herein. If you do not agree to these Terms of Service in their entirety, you are not authorized to use the App or the Services in any manner or form whatsoever.
In consideration of the mutual exchange of promises below, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
Except as otherwise provided, capitalized terms used in this Agreement have the following meanings:
“Account” or “Tuio Account” means an account enabling a Customer to access and use the Services.
“Customer Data” means all data or information uploaded by Customer and/or its Users to the Services. For greater clarity, both Customer and its Users, such as parents and guardians can submit Customer Data.
“Documentation” means any documentation for the Services produced by Tuio and made available to the Customer.
“Fees” means the fees, as specified in the Subscription Form, between Customer and Tuio (collectively, the “Subscription Form”), payable by Customer to Tuio for the right to receive access to the Services. In addition, “Fees” refer to the financial transaction fees paid by Customer as detailed in the ‘Transaction Fees’ tab section of its Tuio Account, as well as any other fee(s) billed to Customer by Tuio in the course of business.
“Payment Processor” means any third party payment service provider utilized by Tuio in order to process payment transactions between Customer and its Users.
“User(s)” means any individual authorized by Customer to use the Services, and who have been supplied with a User account or applicable link by Customer to access the Service, such as a parent or a guardian.
(a) Tuio has provided and will provide certain software services, through Tuio’s proprietary App, to Customer as set forth in this Agreement. The software services Tuio provides to Customer shall include access to (i) the software-as-a-service (SaaS) platform that facilitates, among other things, tuition/program and incidental invoicing and payment, (ii) certain Tuio support, and (iii) any associated APIs (collectively, the “Service(s)”).
(b) Tuio shall ensure that the App will generate an Account for the Customer and Tuio will provide the Customer with login credentials, relevant Documentation, and all other required onboarding materials required for Customer’s respective Account.
(c) Tuio shall provide the Services to allow Customer and its Users to receive and facilitate invoices, payments, and other digital records.
(d) Customer hereby appoints and retains Tuio as Customer’s third party online tuition management solution exclusive provider for the term of Customer’s selected subscription plan.
(e) Both Parties agree to act in a professional manner and perform the Parties respective obligations hereunder in accordance with good business practices.
3. Ownership and License Grant.
(a) Tuio hereby grants to the Customer (and its authorized Users, as defined above) a non-exclusive, revocable, non-transferable, license to use and access the App and Services, and to access, display and use the Service, and any content, text, graphics, images, software, audio, video, information or other works of authorship provided by Tuio hereunder through the App or otherwise, (together, the “Tuio IP”) for the purpose of facilitating invoicing in accordance with the terms herein during the Term (defined below).
(b) For the sake of clarity, Customer shall have a right to use the Services as set out in this Agreement, and Tuio will not be construed as to have conveyed title, and any other right, and/or interest in the Services to Customer. Tuio shall retain sole and exclusive ownership of all right, title, and interest in the Tuio IP. The license grant above includes a license (or sublicense) to and for any third-Party software incorporated and/or provided by Tuio in connection with the Services, if applicable.
(d) Notwithstanding the foregoing, and solely as between Tuio and Customer, Customer owns all rights, interest, and title in and to all Customer Data and Tuio does not claim any copyrights in Customer Data. However, by using the Services Customer hereby grants Tuio, and Tuio’s subsidiaries, affiliates, successors and assigns, a nonexclusive, fully paid, worldwide, perpetual, irrevocable, royalty-free, transferable license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, distribute, publicly display and perform, publish, transmit, remove, retain repurpose, and commercialize the Customer Data, in any and all media or form of communication whether now existing or hereafter developed, without obtaining additional consent, without restriction, notification, or attribution, and without compensating you in any way, and to authorize others to do the same. This license granted by Customer to Tuio under this Agreement is perpetual and shall survive the termination or expiration of this Agreement. You hereby waive all rights to any claim against Tuio for any alleged or actual infringements of any intellectual property rights, proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with such Customer Data.
(e) You may remove your Customer Data by closing your Account or by contacting Tuio as provided below and asking Tuio to remove your Customer Data. However, you acknowledge that in certain instances, some of your Customer Data may not be completely removed and copies of the Customer Data may continue to exist on the Services, including as granted to our sublicensees. Tuio is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your Customer Data from the Services.
(f) You shall not sublicense or transfer your rights to access and use the Services to any third party, nor shall you permit any unauthorized person to access or use the Services via Customer’s Tuio Account.
4. Customer and User Responsibilities.
(a) Customer shall be responsible for all Customer Data provided by Customer or Customer’s authorized Users to Tuio, including the accuracy, reliability, appropriateness and validity of such information, and Customer represents that Customer has the legal right to provide such Customer Data to Tuio. Under no circumstances will Tuio be liable in any way for any Customer Data. You are entirely responsible for all Customer Data that you provide. Tuio has no responsibility for any Customer Data, including without limitation any errors or omissions therein.
(b) It is a condition of this Agreement that you do not:
- Upload, post, transmit or otherwise make available:
- Any Customer Data that is unlawful, harmful, hateful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, pornographic, profane, racially disparaging, indecent, or invasive of another’s privacy;
- Any Customer Data that constitutes or encourages activity illegal under criminal or civil law;
- Any Customer Data that is false, misleading, or fraudulent;
- Any Customer Data that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- Any Customer Data that violates or infringes upon the rights of others, including Customer Data that violates the patent rights, copyrights, trademark rights, privacy rights, publicity rights, trade secret rights, confidentiality rights, contract rights, or any other rights of any individual, living or deceased, or any legal entity;
- Any Customer Data that contains the image, name or likeness of anyone other than yourself, unless (i) that person is at least eighteen years old and you have first obtained his/her express permission or (ii) that person is under eighteen years old but you are his/her parent or legal guardian, or you have obtained express permission from that person’s parent or legal guardian;
- Any request for or solicitation of any personal or private information from any individual;
- Any request for or solicitation of money, goods, or services for private gain;
- Any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
- Any Customer Data that contains advertising, promotions or marketing, or which otherwise has a commercial purpose;
- Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Violate any local, state, national or international law, rule or regulation; and
- You represent and warrant that (i) you have, and will continue to have, during the Term (defined below) of this Agreement, the legal right and authority to access, use and disclose to Tuio the Customer Data you provide; and (ii) Tuio’s use of the Customer Data in accordance with these Terms (defined below) will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between you and any third party.
(d) Customer shall not commercially exploit the Services, or use the Services to interfere with or disrupt the performance of the Service or the data contained therein, or attempt to gain unauthorized access to the Service(s).
(e) Customer must not use the Services in any way that is unlawful or illegal, and shall not tamper with or fraudulently use the Services, or permit or assist others to abuse, tamper with, or fraudulently use the Services.
(f) Customer shall not disassemble, reverse engineer, or otherwise attempt to discover the source code to the Services or the App (where not openly readable).
(g) You understand and agree to protect yourself from unauthorized activity in your Tuio Account. You should regularly log into your Tuio Account and review all activity. You must note that an “Unauthorized Transaction” occurs when money is sent from your Tuio Account that you did not authorize and that did not benefit you. For example, if someone steals your password, uses the password to access your Tuio Account, and sends a payment from your Tuio Account, an Unauthorized Transaction has occurred. If you believe your Tuio login information has been lost or stolen, please contact Tuio immediately.
5. Tuio Responsibilities.
(b) Tuio will provide basic support for the Services and assist as is commercially reasonable, and will maintain and issue fixes/patches to ensure that the Services are functioning to reasonable specifications. Tuio shall use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) any planned downtime; or (b) any unavailability caused by circumstances beyond Tuio’s reasonable control, including but not limited to acts of government, flood, fire, earthquakes, acts of terror, strikes or other labour problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Tuio’s possession or reasonable control, and denial of service attacks.
6. Fees And Taxes.
(a) Customer is required to provide a void cheque and hereby authorizes and directs Tuio, or a third party acting on Tuio’s behalf, to debit Customer’s bank account for the payment of all Fees due to Tuio as they become due. Alternatively, Tuio may, at its discretion, collect a credit card authorization in order to settle all Fees. In the absence of such authorization, or if the authorization is revoked, Tuio may, in Tuio’s sole and absolute discretion, pause, suspend, terminate or decline to provide the Services to Customer. Alternatively, Customer acknowledges that Tuio may collect Fees directly from Customer’s merchant account with Tuio’s payment processor.
(b) Customer will pay Tuio certain software and transaction fees in consideration for the Services as set forth in the applicable Subscription Form and the ‘Transaction Fees’ tab on the App. Unless otherwise indicated in a Subscription Form (i) all amounts in this Agreement are expressed in the currency of the country where Customer is located; and (ii) payments of amounts relating to the software and set up fees are due forthwith once the Subscription Form is executed. Payments for ‘Transaction Fees’ relating to the payment processing activities by Customer will be automatically deducted from the payouts received by Customer. Customer is responsible for maintaining complete and accurate billing and contact information with Tuio.
(c) In addition to the fees contained in the Subscription Form and the ‘Transaction Fees’ tab on the App, Customer is responsible for the chargeback fees and any other fee, fine, or charge incurred by Tuio, or a third party acting on Tuio’s behalf, resulting from actions, inactions, or activity performed by Customer or Customer’s Users. These fees will be billed to Customer as they arise and debited directly from Customer’s bank account or credit card once billed and notified to Customer.
(d) All Fees shall be exclusive of any value added tax, goods and services tax, or other transaction or indirect tax, fee or surcharge (collectively, the “Taxes”) that may apply by any state, local, or national unit of government, including any related interest or similar charge. If Tuio has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount will be automatically collected from your provided payment method or invoiced to and paid by Customer. Tuio understands it is solely responsible for all taxes based solely on Tuio’s income.
(e) If Customer is late in making any payment, or if the Customer’s bank returns any payment, the Customer shall promptly reimburse Tuio for any collection costs incurred. Customer shall pay interest on any late payments at the lower of 1.5% per month or the maximum rate allowed by applicable law.
(f) If Customer disputes any portion of an invoice, the Customer shall give Tuio written notice within three (3) calendar days of the invoice date, otherwise the Customer shall be considered to have accepted the accuracy and validity of the invoice.
(g) If Customer’s account is thirty (30) calendar days or more overdue, Tuio reserves the right to suspend the Services provided to Customer, without liability to Customer, until such undisputed amounts are paid in full.
(h) Customer’s Fees for the Services, if any will be automatically renewed following the expiration of the Term (defined below) described in the Customer’s Subscription Form (e.g., generally on an annual basis). If Customer wishes to cancel auto-renewal of the Services for the following billing period, Customer must notify Tuio at least thirty (30) calendar days prior to such auto-renewal date. Upon auto-renewal, Tuio may change or increase the Fee upon notice to Customer, but such change will only take effect once Customer’s then-current subscription Term has ended. Transaction fees are netted out directly from each transaction and for those, the automatic renewal and the notice period do not apply.
(i) Additional costs, fees, or expenses may arise, change or apply at any time for certain Services and related administrative functions. As a result, Tuio reserves the right to make adjustments to the Fees charged to Customer and Customer understands that all Fees are subject to change. Customer shall not be charged any such additional fees without having first been provided with a written notice.
(j) Customer agrees to indemnify and hold Tuio and Tuio’s respective directors, officers, employees, representatives, agents and control, persons harmless from all liabilities and costs, including attorney’s fees, which Customer may incur by acting in reliance upon the authorization provided by Customer to Tuio under the Business Pre-Authorized Debit Agreement for Variable Amounts form and the Credit Card Authorization Form. The Business Pre-Authorized Debit Agreement for Variable Amounts form and the Credit Card Authorization Form shall remain in full force and effect until revoked/cancelled by Customer in writing and in according with the terms of the Agreement.
(k) In the event of Tuio being unable to collect any and all Fees due under this Agreement, due to Customer’s non-payment or cancellation of Customer’s credit/debit card payment method by initiating an improper chargeback (credit card) or stop payment (direct debit/EFT payments) by any other improper means, Tuio may hire a debt collection agency/company to obtain payment of any outstanding amounts. Customer hereby authorizes any such debt collection agency/company to contact Customer and collect from Customer any outstanding Fees (including Transaction Fees) or other amounts on behalf of Tuio. Customer hereby expressly agrees that Customer shall be liable for all court costs, legal fees and/or collection fees incurred in order to collect such unpaid/outstanding Fees.
(l)The Parties hereby acknowledge, understand and agree that chargebacks and stop payments generally constitute a remedy used by any customer to reverse transactions made with credit/debit cards, bank account or with any other third party payment method when a fraudulent use has occurred, or when there is a violation/breach by a Party of any of the provisions of this Agreement. Thus, considering the foregoing, Customer hereby agrees and undertakes not to dispute any Fee(s) (including Transaction Fees, SaaS/licensing fees and any other ancillary fees) payment for the Services made in accordance with an invoice issued by Tuio hereunder. Should Customer have any questions or objections regarding any such payments or any charge assessed by Tuio against Customer’s credit/debit card or bank account, Customer shall immediately contact Tuio and try to solve/settle this issue in the most amicable and transparent manner possible. Tuio shall then provide Customer with good explanations within a reasonable timeframe.
(m) In the event that Customer’s User (i.e., a parent or guardian) initiates a chargeback (on a credit card transaction) or stop payment (on a direct debit/EFT transaction), Customer acknowledges that Tuio shall charge Customer an ancillary fee of $30. In addition, should Tuio resolve any dispute, on behalf of Customer, between a User and Customer, related to a chargeback (credit card) or stop payment (direct debit/EFT), Customer further acknowledges and agrees that Tuio shall charge Customer an additional fee of $15.
7. Merchant Status.
(a) Unless otherwise required by law, Tuio shall not be regarded as the merchant of record for any transactions under the Agreement, or that are facilitated utilizing the App, notwithstanding the fact that transactions between Customer and Customer’s Users will be processed through accounts held by Tuio with various financial institutions. In this regard, Tuio shall not be responsible or liable for any damages, losses, expenses, or other liabilities arising out of the transactions between Customer and Users, including any fees or surcharges imposed by Customer, or any chargeback or other fees or fines, any fraudulent activity on the part of Users or any breach by Customer of Customer’s obligations under applicable law or regulatory requirement as merchant of record. Customer shall indemnify, defend, and hold harmless Tuio against any all such damages, losses, expenses and liabilities as well as against any damages, losses, expenses and liabilities that Tuio may incur as a result of any claims made against Customer by financial institutions with whom Tuio holds accounts as a result of the use of the Services by Customer and Customer’s Users. Customer shall indemnify, defend, and hold harmless Tuio against any all such damages, losses, expenses and liabilities as well as against any damages, losses, expenses and liabilities that Tuio may incur as a result of any claims made against Customer by any credit card brands, providers, or networks, payment associations, individuals, or entities arising from Customer’s imposition or use of any surcharge, interchange fees, convenience fees, “swipe fees”, or similar fees. Customer has the responsibility to operate in accordance with applicable law in regards to Customer’s use of the Services, which shall specifically include Customer’s imposition of any such fees on Users. Tuio has no responsibility for the manner in which Users use the Services and does not review or make any assurances or representations regarding the creditworthiness of Users. Customer is responsible for maintaining PCI compliance, complying with applicable fraud mitigation systems, anti-money laundering (AML) compliance as well as Know Your Customer due diligence, chargebacks and processing sales tax, as applicable, to Users. Tuio reserves the right to bill Customer for any expense or liability incurred by Tuio as a result of Users’ usage of the Service, including but not limited to non-sufficient funds fees, chargeback fees, or any other fee charged by Tuio’s service providers as a result of fraudulent or bounced activities. Should Tuio change the amount charged for a given fee, Customer will receive appropriate written notice.
(b) TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, CUSTOMER SHALL BE THE MERCHANT OF RECORD FOR ALL TRANSACTIONS WITH USERS AND SHALL BE RESPONSIBLE FOR THE PERFORMANCE OF ALL MERCHANT OF RECORD OBLIGATIONS AS BETWEEN THEMSELVES AND THE ACQUIRING FINANCIAL INSTITUTION.
(a) Definition. “Confidential Information” means any information about a Party that is not generally available to the public or to the Party’s industry and includes all legal and financial information about a Party, a Party’s trade secrets, and any Customer Data. The Party disclosing or providing access to information will be the “Disclosing Party” and the other Party, the “Receiving Party.” For clarity, Customer and a User may each be a Disclosing Party or Receiving Party hereunder.
(b) Obligation to Protect. The Receiving Party will not disclose or make available to any third party the Disclosing Party’s Confidential Information in any form without the express written approval of the disclosing Party except as permitted herein. The Receiving Party will protect the Disclosing Party’s Confidential Information with at least the same level of care as the Receiving Party protects the Receiving Party’s own Confidential Information and, in any case, with no less than a reasonable standard of care.
(c) Use; Disclosure to Personnel. The Receiving Party may use the Disclosing Party’s Confidential Information solely as provided in this Agreement, which shall include use to the extent necessary to perform the Receiving Party’s obligations under this Agreement, and may disclose such Confidential Information within the Receiving Party’s own organization or to contractors or agents with a specific need to know such Confidential Information to allow the Receiving Party to perform hereunder. For the purposes of this Section, a Party’s organization includes third-Party consultants, such as financial advisors and lawyers, provided such consultants are bound by confidentiality obligations at least as strict as those set forth herein.
(d) Compelled Disclosure. It will not be a violation of this Section if the Receiving Party discloses the other’s Confidential Information under subpoena or other demand or requirement to comply with applicable laws, provided that the Receiving Party provides the Disclosing Party with prior written notice of the requested disclosure sufficiently in advance to allow the Disclosing Party to contest or seek to limit the disclosure or seek a protective order or similar instrument. Failure to provide such notice, unless prohibited by applicable laws, will constitute a material breach of this Agreement.
9. Term and Termination.
(i) This Agreement begins on the Effective Date and continues in accordance with the duration stipulated under the Subscription Form (the “Initial Term”), unless earlier terminated as permitted herein. Upon the expiry of the Initial Term, the Agreement shall renew automatically for successive periods equal to the Initial Term provided under the Subscription Form (each a “Renewal Period”) unless Customer notifies Tuio of Customer’s intention to terminate this Agreement, in writing, within the notice period provided under the Subscription Form prior to the expiry of the Initial Term or applicable Renewal Period, in which case this Agreement shall terminate. In this Agreement, the Initial Term and all Renewal Terms, together, may be referred to as the “Term.”
(ii) Upon renewal, Tuio will debit Customer’s bank account (or another payment on file) in order to collect the Fees due in relation to the Renewal Term.
(iii) The Term is not applicable to Customer if Customer signed up on a transaction fee-only basis.
(ii) Customer may, subject to the fulfillment to payment of all fees described in Customer’s Subscription Form or this Agreement, cancel this Agreement for convenience by providing Tuio at least thirty (30) calendar days written notice. Such termination shall not relieve Customer of any payment obligations arising from Customer’s then current Term or any other fee due to Tuio.
(c) Effect of Expiration or Termination. Upon expiration or termination of this Agreement for any reason, all licenses granted herein will cease, unless stated otherwise as a perpetual license. In addition, the Sections that by their nature should so survive, shall survive any termination or expiration. Termination shall not relieve Customer of the obligation to pay any Fees accrued or payable to Tuio prior to the effective date of termination. Upon any expiration or termination of this Agreement, Customer’s right to access and use the Service will automatically terminate, and Customer may not continue to access or use the Service. Following the termination or expiration of this Agreement, Tuio will have no further obligation to maintain or provide your Customer Data and has the right to delete and/or destroy all copies thereof held by it. Tuio will have no liability arising out of or related to Tuio’s exercise of its termination rights under this Agreement.
10. Limitation of Liability and Indemnification.
(a) Limitation of Liability.
(ii) IN NO EVENT SHALL TUIO’S LIABILITY TO YOU OR YOUR BUSINESS EXCEED THE AMOUNT OF FIVE HUNDRED U.S. DOLLARS ($500.00) OR THREE TIMES THE NET PROFIT (NET OF EXPENSES) MADE BY TUIO FROM SERVICING YOUR TUIO ACCOUNT DURING THE PREVIOUS MONTHLY PERIOD WHICHEVER IS HIGHER.
(iii) IN NO EVENT SHALL TUIO OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AND/OR AGENTS BE LIABLE IN THE EVENT THAT CUSTOMER RECEIVES FUNDS FROM USERS LATE OR DOES NOT RECEIVE FUNDS FROM USERS AT ALL DUE TO (A) ANY FRAUDULENT ACTIVITY COMMITTED BY THE PAYMENT PROCESSOR (INCLUDING BANKRUPTCY FRAUD), (B) THE PAYMENT PROCESSOR’S NON-FRAUDULENT BANKRUPTCY, OR (C) ANY TECHNICAL FAILURE IN THE PAYMENT PROCESSOR’S SYSTEM.
(i) TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS TUIO, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, LICENSORS, INDEPENDENT CONTRACTORS, SUBCONTRACTORS, SUPPLIERS, AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LOSS, LIABILITIES, DAMAGES, EXPENSES, DEMANDS, AND COSTS OF ANY KIND, INCLUDING, BUT NOT LIMITED TO ATTORNEYS’ FEES AND COSTS OF ANY LITIGATION OR OTHER DISPUTE RESOLUTION, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH OR RELATED TO (1) YOUR USE, MISUSE, OR ATTEMPT TO USE THE APP AND SERVICES, (2) CUSTOMER DATA OR INFORMATION YOU SUBMIT OR TRANSMIT THROUGH THE APP, (3) YOUR BREACH OF THIS AGREEMENT, OR THE REPRESENTATIONS AND WARRANTIES PROVIDED BY YOU IN THIS AGREEMENT, OR (4) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD-PARTY.
(ii) CUSTOMER WILL, AT ITS SOLE COST AND EXPENSE, INDEMNIFY, DEFEND AND HOLD HARMLESS TUIO AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONTRACTORS FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, LOSSES, OR EXPENSES (“CLAIMS”) ASSERTED BY A THIRD-PARTY AGAINST ANY TUIO INDEMNITEE OR INCURRED OR SUFFERED BY ANY TUIO INDEMNITEE AS A RESULT OF SUCH THIRD-PARTY CLAIMS TO THE EXTENT ARISING OUT OF, RELATING TO OR ALLEGING FACTS THAT, IF PROVEN, WOULD CONSTITUTE TO INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT PROVIDED BY CUSTOMER (INCLUDING CUSTOMER DATA) WHEN USED AS PERMITTED BY TUIO UNDER THIS AGREEMENT.
(c) Alternatives/Modifications. If Tuio becomes aware of an actual or potential intellectual property infringement Claim, or if Customer provides Tuio with notice of an actual or potential intellectual property infringement Claim, then Tuio may at its sole option: (i) procure for Customer the right to continue to use the Service(s); or (ii) replace or modify the Service(s) with equivalent or better functionality so that Customer’s use is no longer infringing; or (iii) if (i) or (ii) are not commercially reasonable, terminate provision of the Service(s).
11. Warranty Disclaimer.
YOUR USE OF THE APP AND SERVICES IS AT YOUR OWN RISK. THE APP AND SERVICES AND ALL THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICES AND OTHER CONTENT MADE AVAILABLE ON OR THROUGH THE APP AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE APP AND SERVICES AND YOUR USE THEREOF.
THE INFORMATION PRESENTED ON OR THROUGH THE APP IS MADE AVAILABLE SOLELY FOR GENERAL/RECOMMENDATION PURPOSES. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF THIS INFORMATION. ANY RELIANCE YOU PLACE ON SUCH INFORMATION IS STRICTLY AT YOUR OWN RISK AND RESPONSIBILITY. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY YOU OR ANY OTHER USER OF THE APP, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TUIO DOES NOT WARRANT, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION (I) THAT THE APP AND SERVICES (OR ANY PORTION THEREOF) IS COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF CUSTOMER’S CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO CUSTOMER; AND/OR (II) REGARDING ANY CONTENT, INFORMATION, OR RESULTS THAT CUSTOMER OBTAINS THROUGH THE USE OF THE APP AND SERVICES.
TUIO MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (II) CUSTOMER’S ACCESS TO OR USE OF THE APP AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) ANY DEFECTS IN THE APP AND/OR SERVICES WILL BE CORRECTED, OR (IV) THE APP AND SERVICES OR ANY SERVER THROUGH WHICH CUSTOMER’S ACCESSES AND USES THE SERVICES, ARE FREE FROM VIRUSES, OTHER HARMFUL COMPONENTS, OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE ELEMENTS OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE CUSTOMER’S COMPUTER SYSTEM, DATA OR PERSONAL INFORMATION.
TUIO DOES NOT WARRANT OR GUARANTEE THAT ANY SUCCESSFUL COMMERCIAL RESULTS OR PROFITS WILL BE OBTAINED BY CUSTOMER AS A RESULT OF ACCESSING/USING THE APP AND SERVICES. AS SUCH, TUIO WILL NOT BE LIABLE FOR ANY FAILURE, OR ANY LOSS OR DAMAGES INCURRED/SUSTAINED BY CUSTOMER AND/OR CUSTOMER’S USERS, AS REGARDS TO CUSTOMER AND CUSTOMER’S USERS USE OR INABILITY TO USE THE APP AND SERVICES.
Unless otherwise expressly provided in writing and/or except as explicitly set forth in another Section of this Agreement (including any Subscription Form), Tuio (a) does not warrant that any of the Services described herein, or any part of them or its App, will be uninterrupted or error free; and (b) makes no warranties or representations either expressed or implied including without limitation any implied warranty of quality, merchantability or fitness for any particular purpose, non-infringement, non-interference, or safety and security regarding the Services provided.
Customer and its Users expressly acknowledge and accept that there are risks inherent in internet connectivity that could result in loss or unauthorized access, and Tuio does not provide or guarantee absolute data security. Notwithstanding the foregoing, and without limiting its obligations elsewhere herein, Tuio, at all times, shall exercise commercially reasonable efforts to ensure that the Services, and maintenance of those components will comply with the industry standards.
12. Additional Terms.
(a) Notices. All notices, requests, demands and other communications will be in writing effective upon receipt if personally delivered or sent by overnight delivery via nationally recognized courier service that provides proof of delivery to the addresses set forth above, if to Customer or Tuio. A Party may designate another address by providing prior written notice as required.
(b) Applicable Law / Dispute Resolution / Jurisdiction. This Agreement shall be governed and construed in accordance with the Laws of Canada and the Province of Ontario, excluding its conflicts of Laws provisions. The applicable Parties consent to the exclusive jurisdiction of the courts of Ontario for the adjudication of any Claims arising between them hereunder. Venue for any such Claims will be in the courts of competent jurisdiction located in Toronto, Ontario.
(c) Injunctive Relief. The Parties acknowledge that a breach of Section 7 (Merchant Status) will cause irreparable harm to the non-breaching Party for which money damages may be inadequate. Therefore, the non-breaching Party is entitled to seek equitable relief to enforce such provisions without the requirement to prove actual damages or post a bond. For clarity, all remedies a Party may seek are cumulative and not exclusive.
(d) Severability. If any Section, provision, or other portion of this Agreement is held to be illegal, invalid, or otherwise unenforceable by a court of competent jurisdiction the remaining portion of the applicable instrument will, in any event, remain valid and effective.
(e) Counterparts. This Agreement may be executed in any number of identical counterparts, including PDF counterparts, each of which will be deemed to be an original for all purposes, but all of which will constitute one and the same agreement, facsimile or electronic signature to suffice. This Agreement may also be accepted upon Customer activating his or her Tuio Account, which should also suffice.
(f) Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, each Party may assign this Agreement in its entirety, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Moreover, Tuio may use contractors or subcontractors to fulfill its obligations but will remain liable for the performance of all such obligations and will be as liable for the acts or omissions of such subcontractors as it would be for its own.
(h) Interpretation. The headings in this Agreement are for convenience only and will not affect interpretation of these instruments. Terms defined in their singular form will be considered defined in their plural form and vice versa.
(i) Non-Disparagement. The Parties agree to not at any time engage in, or make any statements or representations, whether in writing or orally, or in any public forum, that disparages, is negative or otherwise impairs and is harmful to the reputation, goodwill or commercial interests of the other Party. Notwithstanding the foregoing, nothing in this Section will prevent a Party from making any truthful statement to the extent (i) necessary with respect to any litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement or (ii) required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction to order such Party to disclose or make accessible such information. Each Party agrees to notify the other Party of any statement that is required to be made, prior to making such statement. Furthermore, each Party agrees and covenants that the Party shall not at any time make, publish, or communicate to any person or entity or in any public forum, including, without limitation, on any digital or online review sites or forums, any defamatory, discrediting or disparaging remarks, comments or statements concerning the other Party or its businesses, or any of a Party’s employees or officers, now or in the future. For the purposes of this Section, a disparaging or discrediting statement or representation is any communication which, if publicized to another, would cause or tend to cause the recipient of the communication to question the business condition, integrity, competence, good character, or product/service quality of the person or entity to whom the communication relates, but will not include any disclosure required to be made to any governmental or quasi-governmental agency, or any disclosure made in the course of any pending or threatened litigation, mediation, arbitration or agency action.
(j) Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
(k) Force Majeure. No Party will be responsible for delays or failures in performance to the extent caused by acts of God, epidemic and pandemic, war, terrorism, civil disturbance, fire, flood, storm, slide, earthquake, pestilence, or other similar event beyond the control of the Party affected making it illegal or impossible for the Party to perform or timely perform, as applicable, (“Force Majeure”). If any Force Majeure occurs, the Party claiming the Force Majeure will promptly notify the other. The Party claiming the Force Majeure will use commercially reasonable efforts to eliminate or remedy the Force Majeure. This Section will not apply to excuse a permanent failure to make any payment when due.