Terms Of Service
This Terms of Service Agreement and together with all attachments and/or Schedules, the (“Agreement”) is entered into by and among the person (“User”) signing up for the Tuio platform and services;
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Tuio Payments Inc., a corporation incorporated under the Canada Business Corporations Act, with a primary business address of 30 Wellington St. W, 5th Floor ON M5L 1B1 (“Tuio”), effective immediately upon the User accepting these terms on the Tuio platform or in any event when using the Tuio platform (the “Effective Date”).
This Agreement applies to the User’s use of the Tuio platform, including any updates or supplements thereto. Tuio may change or revise this Agreement from time to time in its sole discretion, with or without notice to User. User is bound by any such revisions and should therefore periodically visit https://tuiopay.com/terms-of-service-users to review the then-current terms and conditions. User’s access and use will be subject to the most current version of the Agreement. User’s use of the Tuio platform after such revised Agreement is made available will signify User’s acceptance of such revised Agreement and User’s agreement to be bound by it.
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:
(a) Except as otherwise provided, capitalized terms used in this Agreement have the following meanings:
“Account” means an account enabling a person to access and use the Service.
“User Data” means all data or information uploaded by User to the Service. For greater clarity, all users such as parents, guardians, mature students past age of majority can submit User Data.
“Documentation” means any documentation for the Services produced by Tuio and made available to the User.
“User” means any individual authorized to use the Service, and who has been supplied a user account or applicable link for the Service.
(a) Tuio has provided and will provide certain software services, through its proprietary platform (the “Platform”), to and for User as set forth in this Agreement. The service Tuio provides shall mean access to the SaaS service platform that facilitates, among other things, tuition/program and incidental invoicing and payment, as well as access to certain Tuio support, and any associated APIs (the “Service”).
(b) Tuio shall ensure that the Platform will generate an account for the User and provide to the User login details and all other required onboarding materials for their respective account, and for enrolling any of its Users.
(c) Tuio shall provide the Service to allow User to receive and facilitate invoices, payments, and other digital records.
(d) This Agreement applies to the User’s use of the Tuio platform, including any updates or supplements thereto. Tuio may change or revise this Agreement from time to time in its sole discretion, with or without notice to User. User is bound by any such revisions and should therefore periodically visit https://tuiopay.com/terms-of-service-users to review the then-current terms and conditions. User’s access and use will be subject to the most current version of the Agreement. User’s use of the Tuio platform after such revised Agreement is made available will signify User’s acceptance of such revised Agreement and User’s agreement to be bound by it.
3. Ownership and License Grant.
(a) Tuio hereby grants to the User a non-exclusive, revocable, non-transferable, license to use and access the Platform and Service, 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 (together, the “Tuio IP”) for the purpose of facilitating invoicing in accordance with the terms herein during the Term.
(b) For greater certainty User shall have a right to use the Services as set out in this Agreement, and will not be construed as to have conveyed title, and any other right, and interest in the Services. 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.
(c) Tuio shall also retain ownership rights, and reserves all rights, including intellectual property rights in and to all aggregate derivative user data and anonymized data. Tuio will therefore have the right to create analytics, assemble and utilize any data derived from User Data and/or data derived through use of the Services (“Derived Data”). Derived Data will be anonymized and does not include any raw User Data All right, title and interest in and to Derived Data will be owned by Tuio, in connection with provision of the Services.
(d) Notwithstanding the foregoing, and solely as between Tuio and User, User owns all rights, interest, and title in and to all User Data. Tuio shall not access User accounts, including User Data, except as necessary for the operation of the Service.
(e) User shall not sublicense or transfer its rights to access and use the Service, nor shall it permit any unauthorized person to access or use the Service.
4. User Responsibilities.
(a) User shall be responsible for all information provided to Tuio, including the accuracy, reliability, appropriateness and validity of such information (hereinafter the “User Data”), and User represents that it has the legal right to provide such User Data to Tuio.
(c) User shall not commercially exploit the Service, or use the Service to interfere with or disrupt the performance of the Service or the data contained therein, or attempt to gain unauthorized access to the Service.
(d) User must not use the Service 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.
(e) User shall not disassemble, reverse engineer, or otherwise attempt to discover the source code to the Services (where not openly readable).
5. Tuio Responsibilities.
(a) Tuio shall not modify User Data for the purpose of performing its obligations hereunder, and, subject to the terms herein, will maintain the security of the Service and the User Data.
(b) Tuio will provide basic support and assist as is commercially reasonable, and will maintain and issue fixes/patches to ensure that the Service is functioning to its 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 Provider’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 Provider’s possession or reasonable control, and denial of service attacks.
6. Merchant Status.
(a) Unless otherwise required by law, Tuio shall not be regarded as the merchant of record for any transactions facilitated utilizing the Tuio Platform, notwithstanding the fact that transactions of its 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 of Users, including any chargeback or NSF fees, any fraudulent activity on the part of Users. User shall indemnify 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 it by financial institutions with whom Tuio holds accounts as a result of the use of the Service by its Users. Tuio has no responsibility for the manner in which Users use the Service and does not review or make any assurances or representations regarding the creditworthiness of Users.
(b) Users are required to agree to a PAD agreement authorizing and directing Tuio, to debit or credit the deposit account in certain circumstances, including for the payment of their outstanding invoices with Customer and the processing of refunds.
(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 User Data which will be User’s Confidential Information. The party disclosing or providing access to information will be the “Disclosing Party” and the other party, the “Receiving Party.” For clarity, User 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 it protects its 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 only use the Disclosing Party’s Confidential Information to the extent necessary to perform its obligations under this Agreement and will not disclose it within its 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.
(e) Personal Data. Without limiting any of its other obligations hereunder, Tuio will:
(i) Store all Confidential Information and User personal data provided by under this Agreement, within Canada, including on any and all backup servers.
(ii) As between the parties, be solely responsible for security of the software delivered as a service and for the security of user personal data residing thereon. Tuio shall not be responsible for anything, including but not limited to security and non-disclosure of information for any User information transmitted to any third-party payment processor.
(iii) implement and maintain industry-standard electronic security measures; and ensure that it or its hosted environment contains and/or is running, (1) industry-accepted anti-virus software capable of protecting it from viruses and other malware; and (2) industry-accepted firewall protection restricting unauthorized forms of network traffic.
(iv) notify User, in a reasonable time-frame, if Tuio becomes aware of, or reasonably suspects, any compromise in the security, confidentiality or integrity of User personal data.
8. Term and Termination.
(i) This Agreement begins on the Effective Date and continues for as long as the User is enrolled in a program on the Platform.
(i) This Agreement is terminated upon the User being not actively enrolled in a program on the Platform. For greater clarity, the Agreement is not terminated unless User has access to its password protected account.
9. Limitation of Liability and Indemnification.
(a) NEITHER TUIO, NOR ANY OF ITS DIRECTORS, OFFICERS, OR EMPLOYEES SHALL BE LIABLE FOR ANY (i) INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS OR REVENUE, OR (ii) ANY DIRECT DAMAGES ARISING UNDER THIS AGREEMENT IN EXCESS OF THE FEES PAID OR PAYABLE FOR THE SERVICES GIVING RISE TO THE CLAIM. REGARDLESS OF WHETHER THEY WERE ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
(b) By User. User 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”)s 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 User (including User Data) when used as permitted by Tuio under this Agreement.
(c) Alternatives/Modifications. If (a) Tuio becomes aware of an actual or potential IP Claim, or (b) User provides Tuio with notice of an actual or potential intellectual property infringement Claim, Tuio may at its sole option: (I) procure for User the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that User’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service.
10. Warranty Disclaimer. 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 Platform, 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. Users expressly acknowledges and accepts 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.
11. 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 User or Tuio. A party may designate another address by providing prior written notice as required.
(b) Dispute Resolution / Jurisdiction. This Agreement will 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 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.
(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.
(g) Entire Agreement. This Agreement, including any applicable schedules or forms, constitute the entire agreement among User and Tuio as to its subject matter, superseding any prior or contemporaneous agreements, arrangements, or other relationships or documents, whether written or oral and may not be changed other than in a written document signed by the parties.
(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) 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.
(j) Force Majeure. No party will be responsible for delays or failures in performance to the extent caused by acts of God, 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.