- “Agreement” means, collectively, the Order Form (as applicable), these Platform Services Terms, all Exhibits to these Platform Services Terms and all Statements of Work made pursuant to this Agreement (as may be amended from time to time).
- “API” means the application programming interface that enhances Submitted Data with profile information aggregated from multiple data sources, such as profile and contact information from social media accounts to create “Completed Contact Data”.
- “Client” means the entity or person signing up for this account through the Website.
- “Client Content” means any and all materials provided by (or on behalf of) Client, including text, information, data, images (still and moving), trade-marks, and logos, and any portion thereof, and/or and all data and information generated by Client’s (and Users’) use of the Platform and the Services; Client Content may be further defined in a Statement of Work.
- “Deliverables” means any deliverables (including products, custom development, Documentation, materials and other assets of any kind, including any documents and materials in either printed or electronic form, upgrades and modifications) to be delivered or provided to Client by Blitzen through use of the Platform or otherwise in connection with the provision of Services by Blitzen provided pursuant to this Agreement.
- “Documentation” means the technical publications relating to the Platform, the Services and/or the Deliverables, made available by Blitzen to Client hereunder, whether in electronic or paper form or integrated into the Platform, including any described in a Statement of Work.
- “Intellectual Property Rights” means (a) any and all proprietary rights provided under (i) patent law, (ii) copyright law, (iii) trade-mark law, (iv) design patent or industrial design law or (v) any other statutory provision or common law principle applicable to this Agreement, including trade dress and trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.
- “Platform” means all software and other technology and/or infrastructure (including the API) used by Blitzen and made available to Client pursuant to this Agreement that is further described on the Order Form, including all related Intellectual Property Rights, but excluding any Client Content.
- “Services” means the services to be provided by Blitzen to Client through use of, or in connection with, the Platformas described on the Website, a Statement of Work or otherwise under this Agreement, includingPlatform configuration, implementation and set-up, informatics provisioning services, analytics and reporting services, management services, training services and other professional services.
- “Statement of Work” means a document that sets forth any customized Services and Deliverables to be provided hereunder in addition to those described in the Order Form, which is signed by Client and Blitzen and which references this Agreement. Each Statement of Work will be in a form agreed to by the parties.
- “Submitted Data” means information submitted by Client that can be used to identify an individual or company including without limitation names, phone numbers, email addresses and postal addresses
- “User” means Client’s employees and any other person that Client authorizes to use the Platform in accordance with this Agreement
Terms not defined in this Section 1 will have the meaning given to them elsewhere in this Agreement.
SCOPE & Onboarding
- Subject to the terms and conditions described herein, Blitzen will provide access to the Services on the terms of this Agreement.
- In order to use the Services, Client must create an account and start use of the Services with a free trial on the terms set out in Section 3. As Client’s usage grows, Blitzen will send service notifications relating to full subscription offers to Client.
USE RIGHTS; RESTRICTIONS
- Trial Access. We grant all Users a trial of the Services which will continue unless or until terminated by Blitzen on the terms set out in section 6. The trial entitles each User to a one (1) user free account giving access to a basic tier level of integrations which may include access to Trello, Asana, Google Apps, DropBox and Slack. Users can manage a certain number of contracts specified on the Website and enables Users to enrich those contracts through Blitzens’ FullContact partnership agreement. Features include the ability to segment, score and sync social links, company profile data and contacts using various tools through the Platform. 100 forms or survey entries may be created per month and a maximum of 3 active forms may be used at any given time. There is a cap to the number of submissions Users can collect through Blitzen forms using a free trial account. If a User reaches the maximum monthly cap, forms will be unpublished and there will be a cap on contacts.
- Full Subscription. Client may upgrade at any time to a full subscription on payment of the applicable fees for the upgraded tier. The usage limits and access to specific features and functionality are as set out on the Website together with current pricing can be found at https://blitzen.com/pricing. Client may change subscription tiers by requesting a change to Blitzen. Subscription downgrades (ie. to a lower tier) must be discussed with a Blitzen sales representative. Any agreed downgrade will take effect from the start of the next billing cycle. For subscription upgrades, the subscription change will be effected immediately and Client will be charged a pro-rated amount for the remainder of the then current billing cycle and full revised billing rates for the upgraded tier will begin on the next billing cycle.
- Overages. Trial users and full subscription users will be notified when the User is getting close to or reaches the usage limits of their subscription and Users will be encouraged to upgrade to a subscription tier which better suits their actual usage. On reaching a usage limit by trial users, usage will be capped unless Client upgrades its subscription plan to meet actual usage needs. For users on a full subscription plan, overage fees will be charged at the rates indicated on the pricing page at https://blitzen.com/pricing and will be reflected in Client’s monthly fees.
- License Terms. Subject to Client’s compliance with the terms and conditions of this Agreement, Blitzen agrees that Client has a limited, revocable, non-transferable, non-exclusive right to access and use the Platform during the Term and solely for the internal purposes of Client in connection with Client Content solely as provided herein and/or in any Statement of Work signed by the parties. All rights not expressly granted to Client are reserved by Blitzen and its licensors.
- Access to the Platform Generally. The Platform may only be accessed by Users. Each User shall access the Platform by means of a specific account (each a "User Account") with unique identifications and passwords. User Accounts shall be administered by Client and Client shall assign a central administrator responsible for controlling the access of the Platform by Users. Users may not, and Client shall cause all Users to not, share User Accounts. Client shall ensure that each natural person accessing the Platform has their own User Account. Users are, and Client shall cause Users to be, solely responsible for the confidentiality and use of their User Account credentials. Users may not, and shall cause Users to not, transfer User Accounts for the Platform to any person without Blitzen’s prior written approval. As between Client and Blitzen, Client shall be solely liable and responsible for all activity of Users in connection with the Platform. Client agrees that Blitzen will not be liable for any loss, costs, damages, liabilities or expenses that may be incurred by Client or any other person as a result of any User’s use of the Platform.
- Restrictions. Except as expressly permitted by Blitzen or to the extent expressly authorized by the Platform, Client will not (and will not allow any person to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Platform, any Services or Deliverables; (ii) copy, modify, translate, or create derivative works based on the Platform, the Services or Deliverables; (iii) rent, lease, distribute, sublicense, resell, pledge, assign, or otherwise transfer or encumber rights to the Platform, any Services or Deliverables; (iv) use the Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party, other than end users of the Deliverables; or (v) remove or otherwise alter any proprietary notices or labels from the Platform, the Services or any Deliverables or any portion thereof. Client will use the Platform, all Services and Deliverables solely in compliance with all applicable laws and regulations.
- Ownership. Except for the rights and licenses expressly granted under this Section 3, Blitzen retains all right, title, and interest in and to all Services, Deliverables, and other Intellectual Property Rights created, used, or provided by Blitzen to Client pursuant to this Agreement, including the Platform. Client acknowledges that Blitzen Intellectual Property Rights includes data, modules, components, designs, utilities, objects, processes, program listings, tools, models, diagrams, analysis frameworks, leading practices, trade-marks, patents, industrial designs, know-how, show-how, software, and specifications owned or developed by Blitzen and that nothing contained herein will constitute an assignment or transfer of any such Blitzen Intellectual Property Rights to Client;
- Suggestions. Client acknowledges and agrees that any suggestions, enhancement requests, recommendations or other feedback provided to Blitzen by Client, including Users, relating to the Platform, the Services and the Services (or any part thereof) (collectively, “Submissions”) shall become Blitzen’s sole property. Blitzen shall own exclusive rights, including all Intellectual Property Rights, in and to all Submissions. Blitzen shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to Client. In the event that any Intellectual Property Rights in any Submissions vests, or has vested, in Client, Client hereby assigns to Blitzen all of Client’s right, title and interest in all such Submissions and Client hereby waives in favour of Blitzen any of Client’s moral rights in and to all such Submissions.
- Customizations. Client acknowledges and agrees that any customization, modification, derivatives, improvement, enhancement or other changes made to the Platform, the Services and the Deliverables at Client’s request (for greater certainty, which excludes any Client Content) (collectively, “Customizations”) are Blitzen’s sole property, whether or not such Customizations were developed by Blitzen for Client, developed in collaboration with Client or otherwise developed by or for Blitzen. Blitzen shall own exclusive rights, including all Intellectual Property Rights, in and to all Customizations. Blitzen shall be entitled to the unrestricted use and dissemination of any Customizations for any purpose, commercial or otherwise, without acknowledgment or compensation to Client. In the event that any Intellectual Property Rights in any Customizations vests in Client, Client hereby assigns to Blitzen all of Client’s right, title and interest in all such Customizations and Client hereby waives in favour of Blitzen any of Client’s moral rights in and to all such Customizations.
- Marks. Blitzen grants to Client, and Client grants to Blitzen, a limited, revocable, non-transferable (except as otherwise set out in Section 12), non-exclusive, royalty-free, license to reproduce and display the other’s logos, trade-marks, trade names and other similar identifying material (the “Marks”). Any and all use of a party’s Marks hereunder will inure exclusively to the benefit of the owner of the Marks. This Agreement does not convey any ownership interest in or to the other party’s Marks, but only a limited license that is revocable as set forth in this Agreement. Blitzen will only reproduce and display Client’s Marks that Client uploads into the Platform and in accordance with Client’s selections made through the Platform’s online interface (“Interface”). Client will only reproduce and display Blitzen’s Marks as such Marks are incorporated into and made available to Client as part of the Platform, the Services or Deliverables. Client agrees that Blitzen may use Client’s name and logo to identify Client as a Client of Blitzen on Blitzen's website, and as a part of a general list of Blitzen's clients for use and reference in Blitzen's corporate, promotional and marketing literature and Blitzen’s portfolios, PDF’s and/or galleries on Blitzen’s website. Additionally, Client agrees that Blitzen may issue a press release identifying Client as a client of Blitzen and describing Client’s intended utilization and the benefits that Client expects to receive from use of Blitzen's services (including, but not limited to the Platform). The content of any press release identifying Client as a Client of Blitzen will be subject to Client's prior approval
- Additional API Terms. Client grants to Blitzen a non-exclusive, sub-licenseable license to use and fully exploit Submitted Data of Client and Users solely to provide the API. Client shall ensure that Client has obtained the necessary rights from Users to grant the license it is granting herein in respect of Submitted Data. Client agrees not to use the API except to access Completed Contact Data. Client is prohibited from using Completed Contact Data for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, or sending electronic communications (including email) in violation of applicable law. If Blitzen informs Client that a specified activity or purpose is prohibited, Client will forthwith cease processing of any Completed Contact Data for the prohibited activity or purpose. If Client is not subject to the laws based on the EU Data Protection Directive 95/46 or Swiss Federal Data Protection law or that have been recognized by such laws as providing an equivalent level of protection, Client will agree to either (i) subscribe to the Safe Harbor principles or (ii) contractually agree to provide at least the same level of protection for personal data as is required by the relevant Safe Harbor principles. Client acknowledges and agrees that: (A) Completed Contact Data has not been collected for, and is not intended to be indicative of, any person's employability, credit worthiness, credit standing, credit capacity, or other characteristics related to such person's manner or mode of living, as listed in Section 603(d) of the Fair Credit Reporting Act ("FCRA"), 15 USC Section 1681a; and (B) Client shall not use any Completed Contact Data as a factor in establishing any person’s eligibility for (1) credit or insurance used primarily for personal, family or household purposes, (2) employment purposes, or (3) other purposes authorized under Section 604 of the FCRA, 15 USC Section 1681b or any similar statute. Upon termination or expiration of this Agreement for any reason, all licensed rights granted to Client in respect of the API will immediately cease to exist and Client will be required to irrecoverably delete any and all data it received from the API, including but not limited to the Completed Contact Data.
- Client Content Rights. Client grants to Blitzen, throughout the Term, a limited, revocable, non-transferable, non-exclusive, royalty-free, license to use, reproduce, promote, distribute, modify, publicly display and perform, cache, and transmit Client Content via the Platform solely for the purposes of this Agreement and in accordance with Client’s selection through the Interface. Without limiting any of Client’s obligations under this Agreement, Client will provide Blitzen, in the form and format specified by Blitzen in any applicable Statement of Work, all Client Content reasonably required for Blitzen’s performance hereunder. For avoidance of doubt, although Blitzen will have the right hereunder to host, store, encode, reproduce and/or distribute the Client Content (among other things) in order to provide the Platform, the Services and the Deliverables in accordance with this Agreement, the parties agree that Blitzen does not take legal title to any Client Content supplied by Client. Access to Client Content will be limited to only those employees, contractors and representatives of Blitzen that have a need to access such Client Content. Upon termination or expiration of this Agreement, Blitzen will retain Client Content on its systems for a period of six (6) months; if Client has not reactivated its account and agreed to the then-current version of this Agreement within such period, Blitzen will have the right to delete all Client Content from its systems.
- Aggregate Data. Client hereby grants to Blitzen a world-wide fully-paid, royalty-free and irrevocable right and license to analyze and use Client Content to extract information (collectively, “Aggregate Data”) to create derivative works therefrom (including, but not limited to, the right to prepare comparative benchmark reports). Client agrees that Blitzen shall own and may disclose and publish Aggregate Data on an Aggregate Basis (as defined below) to any person through any means, including, without limitation, through research reports, case studies, press releases, advertising or similar communications. For greater certainty, Blitzen is prohibited from disclosing Client Content other than on an Aggregate Basis, except with Client’s express written consent or as otherwise set forth in this Agreement. “Aggregate Basis” means that Blitzen combines parts of information collected or processed from Client that does not contain Client’s name or the names of Blitzen’s other clients that use the Platform and/or the Services and in a manner that does not contain or disclose any other identifiable information about Client, Users or other persons.
PAYMENT OF FEES
- Fees. Client will pay Blitzen the applicable subscription fees for the Services and Deliverables as set forth in on the Website and any individual Statement of Work (collectively, “Fees”). Payment is processed by a third party service provider through the Website. g. Client will be responsible for and will pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to the Fees (except for taxes on Blitzen’s income). All payments will be made without deduction for withholding taxes. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Client fails to pay any Fees when due, then in addition to any other rights Blitzen may have, Blitzen will have the right to suspend delivery of all or a portion of the Platform, Deliverables or Services to Client, provided that Blitzen has supplied Client prior notice and thirty (30) days’ opportunity to cure such deficiency If Client believes that Blitzen has billed Client incorrectly, Client must notify Blitzen thereof (in writing) no later than thirty (30) days after the date of the invoice. If Blitzen pursues collection efforts against Client due to Client’s failure to pay Fees due under this Agreement, Client will pay Blitzen’s reasonable costs of collection, including any legal fees related thereto. After the first year of this Agreement, Blitzen will be entitled to change any of the Fees on at least thirty (30) days’ prior notice to Client, provided that Blitzen will not be able to change any of the Fees more than twice in any twelve (12) month period and, further provided that, upon receipt of such notice from Blitzen, Client will be entitled to terminate this Agreement on at least twenty (20) days’ notice to Blitzen. If Blitzen revokes its notice of change within such twenty (20) day period, this Agreement will not be so terminated and the Fees will not so change.
- Term. Subject to earlier termination as provided below, this Agreement will commence on the Effective Date and continue until terminated in accordance with Section 6.2 below.
- Termination. Either party may terminate this Agreement and/or any Statement of Work with or without cause upon thirty (30) days’ notice This Agreement may also be terminated as provided for and in accordance with Section 5.1 (subject to the right of Blitzen to revoke the notice set forth therein).
- Effect of Termination. Termination or expiration of this Agreement will automatically terminate all Statements of Work entered hereunder. If applicable, Client will pay in full for the Services and Deliverables up to and including the last day on which the Services and Deliverables are provided. In the event that the Client terminates this Agreement for convenience pursuant to Section 6.2, Client shall pay to Blitzen liquidated damages in an amount equal to twenty-five percent (25%) of the Fees applicable for the remainder of the then-current term (the “LDs”). The parties agree that the LDs are not a penalty, but represent a genuine and reasonable pre-estimate of the minimum damages that Blitzen will suffer as a result of Client’s early termination of this Agreement for convenience. In addition, each Statement of Work may be terminated in accordance with its terms. Upon termination or expiration of this Agreement, all rights granted herein will revert to the granting party and all licenses will terminate, and Client will make no further use of the Platform, the Services or Deliverables. All accrued rights to payment and any terms and conditions of this Agreement, which by their nature extend beyond the termination or expiry of this Agreement, shall survive the termination or expiry of this Agreement including, without limitation, Sections 1, 3.4, 3.5, 3.6, 3.7, 4.2, 6.4, 7, 8.1, 9, 10 and 13.
- 6.4 Return/Destruction of Client Content/Confidential Information. Within thirty (30) days of any termination or expiration of this Agreement, each party will return to the other party or destroy all Confidential Information of the other party. Additionally, Blitzen will, after six (6) months of any termination or expiration of this Agreement, destroy all Client Content that it had used to perform the Services and supply the Platform and the Deliverables unless, during such six (6) month period: (a) Client has reactivated its account (including by executing the then-current version of this Agreement) and/or (b) Blitzen and Client specifically agree in writing to handle the Client Content in an alternative manner. It is solely Client’s responsibility to make alternative arrangements with Blitzen within such six (6) month period if Client does not wish Client Content to be handled in this manner, and Blitzen will have no liability whatsoever relating to the destruction of any Client Content (including with respect to the timeliness of such destruction) if Client fails to do so.
- Confidential Information. As used in this Agreement, "Confidential Information" means all confidential information disclosed by a party (the "Disclosing Party") to the other party (the "Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Blitzen’s Confidential Information shall include the Platform and the terms and conditions of this Agreement; and Confidential Information of each party shall include as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iii) was independently developed by the Receiving Party.
- The Receiving Party:
- will not, directly or indirectly, deal with, use, exploit or disclose such Confidential Information or any part thereof to any person or entity or for any purpose whatsoever (including in any manner that would benefit any competitor of the Disclosing Party) except as expressly permitted hereunder or unless and until expressly authorized to do so by the Disclosing Party
- will use and reproduce the Confidential Information of the Disclosing Party only to the extent necessary to fulfill the Receiving Party’s obligations or exercise its rights under this Agreement;
- will disclose the Confidential Information of the Disclosing Party only to its representatives and professional advisors, and those of its affiliates, who have a need to know such Confidential Information for the purposes of fulfilling the Receiving Party’s obligations or exercising its rights under this Agreement, and who have assumed obligations of confidentiality equal to or greater than the obligations of the Receiving Party under this Section with respect to the Confidential Information. In all cases, the Receiving Party will be responsible for any loss, theft, unauthorized access of Confidential Information or breach of law by its representatives, professional advisors, affiliates, employees and subcontractors; and
- will use reasonable efforts to treat, and to cause all its representatives and those of its affiliates to treat, all Confidential Information of the Disclosing Party as strictly confidential, provided that in no event will such efforts be less than the degree of care that the Receiving Party exercises in protecting its own valuable confidential information.
- The Receiving Party will be entitled to disclose Confidential Information if such disclosure is required by a court, administrative body, or regulatory body (including a stock exchange) of competent jurisdiction, whether as a result of any application made by the Receiving Party or an investigation initiated by the regulatory body, or otherwise, provided that the Receiving Party will:
- give prompt notice of any such requirement for disclosure to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy;
- take such steps as are reasonably necessary and available to maintain the confidentiality of the Confidential Information by such court, administrative or regulatory body; and
- in any event, make such disclosure only to the extent so legally required.
REPRESENTATIONS AND WARRANTIES
- Client Warranties. Client represents, warrants and covenants to Blitzen as follows: (i) Client exists under the laws of its own jurisdiction and is not under any contractual obligation that would preclude it from entering into this Agreement, granting the licenses granted hereunder or would interfere with the use of the Client Content provided under this Agreement; (ii) Client owns or has properly licensed all rights in the Client Content at all times during the Term; (iii) all Client Content and Client’s use of the Platform does not, nor will be, in violation of any applicable laws or regulations; (iv) all Client Content does not and will not infringe the Intellectual Property Rights of any person; (v) Client will comply with all relevant Canadian export and encryption laws and regulations; and (vi) neither this Agreement nor the performance of or exercise of rights under this Agreement will violate, conflict with, or result in the breach of any term, condition, or provision of any agreement or legal obligation (whether or not existing at the Effective Date) to which Client is a party or by which it may be bound, or constitute a default thereunder.
- Blitzen Warranties. Blitzen represents, warrants and covenants as follows: (i) Blitzen exists under the laws of the State of Delaware, United States and is not under any contractual obligation that would preclude it from entering into this Agreement; (ii) it is not under any contractual or other obligation that would preclude it from providing the Platform, the Services or the Deliverables or granting the licenses granted hereunder; (iii) it is the owner or creator or licensee of the Platform and has all rights necessary to perform its obligations hereunder; and (iv) it will perform the Services and provide the Deliverables in a good, workmanlike and professional manner.
- DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, DELIVERABLES, DOCUMENTATION, THE PLATFORM, AND ALL OTHER TECHNOLOGIES, INFORMATION AND MATERIALS PROVIDED BY BLITZEN HEREUNDER ARE PROVIDED “AS IS” WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND AND BLITZEN HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BLITZEN DOES NOT WARRANT THAT THE PLATFORM, THE SERVICES, DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM CLIENT’S USE OF THE PLATFORM, DELIVERABLES OR SERVICES.
- LIMITATION OF LIABILITY. BLITZEN SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, FOR ANY: (A) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (EVEN IF THE PARTY CAUSING SUCH LOSS OR DAMAGE HAS BEEN ADVISED OR HAD KNOWLEDGE OF THE POSSIBILITY OF SAME OR COULD HAVE REASONABLY FORESEEN SAME), INCLUDING LOST BUSINESS REVENUE, LOSS OF PROFITS OR FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS); (B) COST OR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; AND/OR (C) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY CLIENT IN THE CURRENT TERM.
- Client Obligations. Client shall defend, indemnify, and hold Blitzen harmless from any claims, costs, damages, losses, settlement fees, and expenses (including without limitation legal fees and disbursements) incurred directly or indirectly as a result of: (i) any breach of this Agreement whether by Client or Users; (ii) any action or inaction of Client; and/or (iii) any claim, suit, judgment, settlement, or cause of action alleging that any of Client Content infringes, violates or misappropriates of any Intellectual Property Right of any person including, but not limited to, a patent, design, industrial design, copyright, trade secret or trademark or other proprietary right.
Except for Client’s payment obligations, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to, earthquakes, loss of utilities, and other disasters. Notwithstanding the foregoing, If a party seeks to excuse itself from its obligations under this Agreement due to a force majeure event, that party will promptly notify the other party of the delay or non-performance, the reason for such delay or non-performance and the anticipated period of delay or non-performance. If the anticipated or actual delay or non-performance exceeds sixty (60) calendar days, the other party may immediately terminate the Agreement by giving notice of termination and such termination will be in addition to the other rights and remedies of the terminating party under the Agreement, at law or in equity
CHANGES TO THE SERVICES OR THIS AGREEMENT
Blitzen continues to develop and improve the Services, so this Agreement may need to change along with the Services. Blitzen reserves the right to change this Agreement and the Services at any time, but if Blitzen makes any substantive changes to this Agreement, Blitzen will endeavour to bring it to your attention by placing a notice on the homepage of the Website and/or by sending you an email. If you don’t agree with the new Agreement terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Agreement is effective, that means you agree to all of the changes. Except for changes by Blitzen as described here, no other amendment or modification of this Agreement will be effective unless in writing and signed by both parties. The date of last update of this Agreement is set out at the bottom of this document.
Blitzen may suspend or discontinue any part of the Services, or Blitzen may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. Blitzen will try to give you notice when Blitzen makes a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, Blitzen reserves the right to remove any Content from the Services at any time if someone alleges you contributed that Content in violation of this Agreement and to change domain names selected (including if a domain infringes trademark rights of a third party), in our sole discretion, and without notice.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by Client except with Blitzen’s prior written consent. Blitzen may assign this Agreement without restriction. This Agreement (including all Blitzen guidelines and terms on the Website and any Statements of Work (which are incorporated herein by this reference)) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and each party does not have any authority of any kind to bind the other in any respect whatsoever and neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied in the other party’s name or on its behalf. All notices, demands, consents, authorizations, approvals and other communications under this Agreement will be in writing and will be deemed to have been duly given when received, in respect of Client, at the applicable Client address provided on registration or, in respect of Blitzen Corp., at 188 Queen Street N, Kitchener, Kitchener, Ontario, N2H 2J2, Attention: President, or by email to email@example.com. This Agreement will be governed by the laws applicable in the Province of Ontario without regard to the conflict of law provisions thereof. With respect to all disputes arising in relation to this Agreement, the parties consent to exclusive jurisdiction and venue in the courts located in the City of Kitchener, Ontario. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement
Last Updated: November 3, 2015