General Services Agreement - Service Terms
PLEASE READ THESE TERMS AND CONDITIONS (“SERVICE TERMS”) CAREFULLY. BY SIGNING THE GENERAL SERVICES AGREEMENT (“AGREEMENT”) WITH STORETODOOR TECHNOLOGY INC. (“STORETODOOR”) OR USING THE STORETODOOR PLATFORM (“SOFTWARE”), YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING LOCATIONS (“YOU” OR “CLIENT”) AGREE TO BE BOUND BY THESE SERVICE TERMS IN ADDITION TO THE TERMS IN THE AGREEMENT.
BY CREATING A STORETODOOR ACCOUNT, YOU AGREE TO ACCEPT AND RECEIVE COMMUNICATIONS FROM STORETODOOR, ITS AFFILIATED COMPANIES AND/OR DELIVERY CONTRACTORS, INCLUDING VIA TEXT MESSAGE AND CALLS TO THE TELEPHONE NUMBER YOU PROVIDED. SUCH COMMUNICATIONS MAY BE GENERATED BY AUTOMATIC TELEPHONE DIALING SYSTEMS WHICH MAY DELIVER PRE-RECORDED MESSAGES, INCLUDING BUT NOT LIMITED TO COMMUNICATIONS CONCERNING ORDERS PLACED THROUGH YOUR ACCOUNT ON THE SOFTWARE. MESSAGE AND DATA RATES MAY APPLY. IF YOU DO NOT WISH TO RECEIVE SUCH COMMUNICATIONS, YOU MAY OPT OUT OF SUCH COMMUNICATIONS BUT YOUR USAGE OF THE SOFTWARE MAY BE LIMITED.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the entity or subject entity.
1.2 “Agreement” means the General Services Agreement executed by StoreToDoor and Client which incorporates these Service Terms into them.
1.3 “Applicable Laws” means, in respect of any person, property, transaction or event, all applicable Canadian or foreign federal, provincial, state, municipal or local government laws, statutes, rules, by-laws and regulations, and all applicable official rules, policies, notices, directives, orders, judgments and decrees of any Governmental Authority, all as amended from time to time including, without limitation, (i) all laws and regulations concerning the sale, marketing, distribution, or transport of liquor, cannabis, prescription drugs, or other regulated medical goods, (ii) all consumer protection legislation applicable to the provision of the Client’s goods and/or services to End Customers, and (iii) all anti-spam legislation applicable to communications from the Client to End Customers.
1.4 “Business Day” means any day of the year, other than a Saturday, Sunday or any statutory holiday, in the Province of Saskatchewan.
1.5 “Delivery Contractor” means any person engaged by StoreToDoor for the delivery of goods facilitated by the Services.
1.6 “Delivery Zones” means postal regions as described in Agreement.
1.7 “Documentation” means any manuals, instructions or other documents or materials that StoreToDoor provides or makes available to Client in any form or medium and which describe the functionality, components, features or requirements of the Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
1.8 “End Customer” means the customer of Client receiving Client’s Product as delivered by Delivery Contractor.
1.9 “Force Majeure Event” means any event or circumstances beyond the reasonable control of a party, including an act of government, acts of war, flood, fire, earthquake, other acts of God or nature, civil unrest, embargoes, act of terror, strike or other labour disputes, Internet or telecommunications service failure or delay, Non-StoreToDoor Application failure or delay, or a denial of service/access attack.
1.10“Governmental Authority” means any governmental or regulatory authority, agency, commission or board of any Canadian or foreign federal, provincial, state, municipal or local government, parliament or legislature, or any court or, without limitation, any other law, regulation or rule-making entity having or purporting to have jurisdiction in the relevant circumstances, and whether now or in the future constituted or existing, or any person acting or purporting to act under the authority of any of them.
1.11 “IP Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.12 “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, provincial, territorial, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction
1.13 “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind.
1.14 “New Version” means any new version of the Software that StoreToDoor may from time to time introduce and market generally as a distinct licensed product (as may be indicated by StoreToDoor’s designation of a new version number) and which StoreToDoor may make available to Client at an additional cost under a separate written agreement.
1.15 “Non-StoreToDoor Application” means a service or software application that is provided by a third party or by Client and that interoperates with the Services, including Onfleet.
1.16 “Open-Source Components” means any software component that is subject to any open-source copyright licence agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or licence agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
1.17 “Products” includes all products offered for delivery orders by Client.
1.18 “StoreToDoor” means StoreToDoor Technology Inc.
1.19 “StoreToDoor Platform” includes the StoreToDoor website (“Website”) as well as any (future) StoreToDoor mobile applications (“StoreToDoor Platform App”) which together constitute the online platform.
1.20 “Regular Support Hours” means 9:00 a.m. to 7:00 p.m. (Local Time) during Business Days.
1.21 “Regular Delivery Hours” means 9:00 a.m. to 7:00p.m. (Local Time) during Business Days.
1.22 “Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, and subcontractors.
1.23 “Service Level Terms” means, at any time, the then current version of the Service Level Terms for use with these Service Terms, as amended by StoreToDoor from time to time, in its sole discretion.
1.24 “Software” means the current version (as of the date of execution of this Agreement) of StoreToDoor’s delivery software, in object code format.
1.25 “Support Services” means the support services described in the Support Services Terms.
1.26 “Support Services Terms” means, at anytime, the then current version of the Support Services Terms for use with these Service Terms, as amended by StoreToDoor from time to time, in its sole discretion.
1.27 “Territory” means Canada.
1.28 “Third Party Materials” means materials and information, in any form or medium, that are not proprietary to StoreToDoor, including any third-party: (a) documents, data, content or specifications; (b)Open-source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
1.29 “Upgrade” means any update, upgrade, release or other adaptation or modification of the Software, including any updated Documentation, that StoreToDoor may provide to Client from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software, but does not include any New Version.
1.30 “User” means any employee or contractor of Client.
2. SERVICES. StoreToDoor shall provide the Services to Client pursuant to these Service Terms and as described in more detail in each Agreement, provide Support Services as described in the Support Service Terms in effect from time to time, and use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: planned downtime (of which StoreToDoor will give advance electronic notice) or Scheduled Downtime (as defined in the Service Level Terms) and any unavailability cause by circumstances beyond StoreToDoor’s reasonable control, including a Force Majeure Event, in each case subject to Client’s use of the Services in accordance with the Agreement and Documentation. StoreToDoor may employ subcontractors in the provision of the Services, but StoreToDoor will be responsible and liable for such subcontractors’ acts and omissions related to this Agreement.
3. STORETODOOR OBLIGATIONS.
3.1 StoreToDoor shall:
(a) Provide a means by which Client can request a Product be delivered to a specific address within city limits (“Task”) during the Regular Delivery Hours; and
(b) When applicable, forward each Task to a Delivery Contractor so that the Delivery Contractor can pick up the applicable Product(s) from the Client to deliver to the End Customer.
3.2 Shippers Terms. StoreToDoor is responsible for each package once it has departed with the package from an approved Client Location to the end destination outlined in the Task populated by Delivery Contractor. StoreToDoor will accept each package out for delivery and collect agreed upon proof of delivery at the end destination and that will be considered the completion of the transaction.
4. CLIENT OBLIGATIONS.
4.1 Client shall:
(a) Cooperate with StoreToDoor in all matters relating to the Services and appoint a Client employee to serve as the “Main Contact” with respect to this Agreement and have the authority to act on behalf of Client with respect to matters pertaining to this Agreement. This Main Contact shall be described within the Agreement and any changes to the Main Contact must be made in writing to StoreToDoor within 10 days of such change;
(b) Provide such access to Client’s premises, and such accommodation and other facilities (“Locations”) as may reasonably be requested by StoreToDoor for the purposes of performing the Services;
(c) Respond promptly to any StoreToDoor request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for StoreToDoor to perform Services in accordance with the requirements of this Agreement;
(d) Use Services and Documentation in accordance with the Agreement, Documentation, and Applicable Laws;
(e) Comply with terms of service of any Non-StoreToDoor Application in which Client uses Services;
(f) Prepare the Product(s) for each Task for pick up by a Delivery Contractor at the designated time; and
(g) Comply with all Applicable Laws.
4.2 Insurance. During the term of this Agreement and for a period of 6 months thereafter, Client shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000.00 and a minimum cargo insurance of $18,000.00 with financially sound and reputable insurers. Upon StoreToDoor’s request, Client shall provide StoreToDoor with a certificate of insurance from Client’s insurer evidencing the insurance coverage specified in these Service Terms. Client shall provide StoreToDoor with 30 days’ advance written notice in the event of a cancellation or material change in Client’s insurance policy. Except where prohibited by law, Client shall require its insurer to waive all rights of subrogation against StoreToDoor’s insurers and StoreToDoor.
5. REFUNDS AND RE-ORDERS. Refunds and re-orders will be addressed as follows:
5.1 Delivery Refunds. Client acknowledges and agrees that StoreToDoor shall be responsible only for facilitating the delivery of Product(s) to End Customers. Client shall be solely responsible for any customer complaints regarding Product(s), including without limitation, complaints regarding the nature, quality, content, number, or packaging of Product(s). Client agrees not to refer any End Customer complaints directly to StoreToDoor. Any complaints regarding the timeliness or quality of a Delivery Contractor’s delivery service shall be reported by Client to StoreToDoor. If the completion of a delivery is not on the same day and due to the fault of StoreToDoor, StoreToDoor will reimburse Client for all or a portion of the delivery cost of the applicable delivery, as determined in StoreToDoor’s sole discretion. If Client elects to refund an End Customer for any reason, such election shall not obligate StoreToDoor to provide a corresponding reimbursement to Client. In the event that a Product has been visibly damaged with proof from End Customer, StoreToDoor may reimburse Client for all or a portion of the delivery, at StoreToDoor’s sole discretion. For the purposes of this agreement, “Product” is the actual product, not the packaging that contains the Product. In no event shall StoreToDoor be obligated to issue any refunds directly to End Customers.
6. CLIENT RESTRICTIONS.
6.1 Client will not:
(a) make any Services or Documentation available to, or use any Services or Documentation for the benefit of, anyone other than Client or its Affiliates or Users, unless expressly stated otherwise in the Agreement or the Documentation;
(b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Documentation, or include any Service or Documentation in a service bureau or outsourcing offering;
(c) use the Services or Non-StoreToDoor Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, including IP Rights and privacy rights;
(d) use the Services or Non-StoreToDoor Application to store or transmit malicious code, or to send spam;
(e) knowingly interfere with or disrupt the integrity or performance of any Service, Non-StoreToDoor Application, or third-party data;
(f) attempt to gain unauthorized access to any Service or Documentation or its related systems or networks;
(g) permit direct or indirect access to or use of any Service or Documentation in a way that circumvents a contractual service limit, or use any Service to access or use any StoreToDoor IP Rights except as permitted under the Agreement or the Documentation;
(h) copy Documentation except for internal use by Client;
(i) frame or mirror any part of any Service or Documentation, other than framing on Client’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation and this Agreement; or
(j) reverse engineer the source code of any Service or any software used to provide the Services (to the extent such restriction is permitted by Applicable Laws).
Client’s or a User’s intentional violation of these restrictions, or any use of the Services in breach of the Agreement or Documentation, by Clients or Users that in StoreToDoor’s judgment imminently threatens the security, integrity or availability of StoreToDoor’s services, may result in StoreToDoor’s immediate suspension of the Services. StoreToDoor will use commercially reasonable efforts under the circumstances to provide Client with an opportunity to remedy such violation or threat prior to any such suspension. A User’s password may not be shared with any other individual and a User’s identification may only be reassigned to a new individual replacing one who will no longer use the Services.
7. MAINTENANCE AND UPGRADES.
7.1 Provision of Maintenance. During the Term, StoreToDoor shall exercise commercially reasonable efforts promptly to correct any failure of the Software to perform according to its specifications (“Maintenance”) during Regular Support Hours.
7.2 Upgrades. During the Term, StoreToDoor will provide Client with all maintenance releases (including updated Documentation) that StoreToDoor may, in its sole discretion, make generally available at no additional charge. All maintenance releases, on being provided by StoreToDoor to Client hereunder, are deemed Software subject to all applicable terms and conditions of this Agreement. Client will install all maintenance releases as soon as practicable after receipt. Client does not have any right hereunder to receive any New Versions of the Software that StoreToDoor may, in its sole discretion, release from time to time.
8.1 Service Fees and Payment. In consideration of the Services provided to the Client under this Agreement, the Client shall pay to StoreToDoor the Service Fees set out in the Agreement. Client shall be responsible for all taxes, duties, and other governmental charges on the sale of Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities.
8.2 Fee Changes. The Service Fees set out in this Agreement may be changed from time to time subject to advance written notice from StoreToDoor.
8.3 Invoices. Client will be invoiced on the first day of each week and payment against any and all invoices rendered by StoreToDoor to Client will be due within 7 days thereof. Late payments shall be subject to a late payment charge of three and a half per cent (3.5%) per month to be applied to any overdue balances at the end of each calendar month.
8.4 Taxes. Amounts due under this Agreement are payable without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If Applicable Law requires withholding or deduction of such taxes or duties, Client shall separately pay StoreToDoor the withheld or deducted amount.
8.5 Auditing Rights and Required Records. Client agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of 3 years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. StoreToDoor may, at its own expense, on reasonable prior notice, periodically inspect and audit such records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Client has underpaid StoreToDoor with respect to any amounts due and payable during the Term, Client shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 8.3. Client shall pay for the costs of the audit if the audit determines that Client ‘s underpayment equals or exceeds 10% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of 3 years after the termination or expiration of this Agreement.
9. TERM & TERMINATION.
9.1 Term. The term of this Agreement is as set out in the Agreement (the “Term“).
9.2 Termination. This Agreement may be terminated at any time:
(a) By either party, effective on written notice to the other party, if the other party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach;
(b) By either party, effective on written notice to the other party if one of the parties (i) is dissolved, liquidated or wound-up or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any federal or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver, receiver-manager or custodian for all or a substantial part of its property;
(c) By either party with mutual consent of the parties hereto, provided that such consent to terminate is in writing and signed by each of the parties hereto;
(d) By StoreToDoor, effective on written notice to Client, if Client fails to pay any amount when due under this Agreement, where such failure continues for more than 10 days after StoreToDoor’s delivery of written notice thereof (the “Payment Failure“); or
(e) By StoreToDoor with 30 days advanced written notice.
9.3 Effects of Termination. Upon termination of this Agreement or Term, Client shall cease all use of the Software and delete, destroy, or return all copies of the Software, Documentation, and StoreToDoor Confidential Information in its possession or control, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials. The following will survive termination or expiration of this Agreement: (a) any obligation of Client to pay fees incurred before termination; (b) Article 12 (Confidential Information), Article 13 (Representations and Warranties), Article 14 (Indemnification), Article 15 (Limitation of Liability), and this Section 9; and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
10.1 The Client acknowledges that StoreToDoor is involved in a highly strategic and competitive business. The Client further acknowledges that the Client would gain substantial benefit and that StoreToDoor would be deprived of such benefit if the Client were to directly hire any personnel employed by StoreToDoor.
10.2 Therefore, during the Term of this Agreement and for a period of twelve months thereafter, Client shall not directly or indirectly, in any manner solicit or induce for employment any person who performed any work under this Agreement who is then in the employment of StoreToDoor. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section and the hiring of any such employees or independent contractor who freely responds thereto shall not be a breach of this Section.
10.3 If Client breaches this Article, Client shall, on demand, pay to StoreToDoor a sum equal to the greater of one year’s basic salary for that employee, worker, or independent contractor plus the recruitment costs incurred by StoreToDoor in replacing such person.
11. INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP.
11.1 Client acknowledges and agrees that (a) the Software and Documentation are not sold to Client by StoreToDoor and Client does not and will not have or acquire under or in connection with this Agreement any ownership interest in the Software or Documentation, or in any related IP Rights, (b) StoreToDoor is and will remain the sole and exclusive owner of all right, title and interest in and to the Software and Documentation, including all IP Rights relating thereto, and (c) Client hereby unconditionally and irrevocably assigns to StoreToDoor (or StoreToDoor’s designee), its entire right, title and interest in and to any IP Rights that Client may now or hereafter have in or relating to the Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.
11.2 Client Co-Operation and Notice of Infringement. Client shall, during the Term (a) take all reasonable measures to safeguard the Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access, (b) at StoreToDoor’s expense, take all such steps as StoreToDoor may reasonably require to assist StoreToDoor in maintaining the validity, enforceability and StoreToDoor’s ownership of the IP Rights in the Software and Documentation, (c) promptly notify StoreToDoor in writing if Client becomes aware of (I) any actual or suspected infringement, misappropriation or other violation of StoreToDoor’s IP Rights in or relating to the Software or Documentation, or (II) any claim that the Software or Documentation, including any production, use, marketing, sale or other disposition of the Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the IP Rights or other rights of any person, and (d) fully co-operate with and assist StoreToDoor in all reasonable ways in the conduct of any claim, action, proceeding or suit (each, an “Action“) by StoreToDoor to prevent or abate any actual or threatened infringement, misappropriation or violation of StoreToDoor’s rights in, and to attempt to resolve any claims relating to, the Software or Documentation, including having Client’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
11.3 No Implied Rights. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Client or any third party any IP Rights or other right, title or interest in or to any of the Software or Documentation.
11.4 Feedback. Nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict StoreToDoor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback (as defined below), without compensating or crediting Client or the End Customer in question, except to the limited extent that Article 12 (Confidential Information) governs Feedback that constitutes Client’s Confidential Information. Notwithstanding the provisions of Article 12, Client may not designate Feedback as its Confidential Information to the extent that such Feedback relates to StoreToDoor or its products or services. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of StoreToDoor’s products or services.)
11.5 End Customer Information. Client understands that any information accepted by StoreToDoor from End Customers is the property of StoreToDoor and shall remain the property of StoreToDoor upon termination of this Agreement.
12. CONFIDENTIAL INFORMATION.
12.1 Confidential Information Defined. “Confidential Information” refers to the following one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within 3 Business Days; (c) any source code disclosed by StoreToDoor and any names of actual or potential requesting Users disclosed by Client, whether or not marked as confidential; (d) any technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing and information, and (e) any other non-public, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (f) is in Recipient’s possession at the time of disclosure; (g) is independently developed by Recipient without use of or reference to Confidential Information; (h) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (i) is approved for release in writing by Discloser. Recipient is on notice that Confidential Information may include Discloser’s valuable trade secrets.
12.2 Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent.
12.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement, (b) except as may be permitted under the terms and conditions of Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Article; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Article, (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and, in no event, less than a reasonable degree of care, (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and cooperate with Disclosing Party to prevent further unauthorized use or disclosure, and (e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Article. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Article with respect to any Confidential Information that constitutes a trade secret under any Applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such Applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
12.4 Compelled Disclosure. If the Receiving Party or any of its Representatives is compelled by Applicable Law to disclose any Confidential Information, then, to the extent permitted by Applicable Law, the Receiving Party shall: (a) promptly, and before such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek an injunction, protective order or other remedy or waive its rights under Section 12.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking an injunction, protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by Applicable Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other competent authority that such Confidential Information will be afforded confidential treatment.
12.5 Injunction. Recipient agrees that breach of this Article would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser shall be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
12.6 Termination & Return. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
12.7 Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
13. REPRESENTATIONS & WARRANTIES.
13.1 Mutual Representations and Warranties. Each party represents, warrants and covenants to the other party that: (a) it is incorporated and validly existing as a corporation under the Laws of the jurisdiction of its incorporation, (b) it has the corporate power and capacity to enter into and perform its obligations and grant the rights, licences and authorizations it grants and is required to grant under this Agreement, (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate action of such party, and (d) when executed and delivered by the parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, but subject to bankruptcy and other laws affecting creditor’s rights as well as principles of equity.
13.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION, ALL PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY STORETODOOR ARE PROVIDED “AS IS.” STORETODOOR HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL CONDITIONS AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, STORETODOOR MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT ANY STORETODOOR OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET CLIENT’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY CONDITION, REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
14.1 From StoreToDoor. StoreToDoor shall indemnify, defend and hold harmless Client from and against any and all Losses incurred by Client arising out of or relating to any Action by a third party to the extent that such Losses arise from any allegation in such Action that the Services infringe any Canadian IP Rights in the Territory. The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any: (a) Open-Source Components or other Third-Party Materials, (b) patent issued on a patent application published after the Effective Date, (c) incorporation by the Services of, or combination, operation or use of the Services in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by StoreToDoor or specified for Client’s use, (d) modification of the Services other than: (I) by StoreToDoor in connection with this Agreement; or (II) with StoreToDoor’s express written authorization and in strict accordance with StoreToDoor’s written directions and specifications, (e) failure to timely implement any modification, update or replacement of software made available to Client by StoreToDoor, (f) use of any software after StoreToDoor’s notice to Client of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights, (g) negligence, abuse, misapplication or misuse by or on behalf of Client, Client’s Representatives or a third party, (h) action by or on behalf of Client that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to StoreToDoor’s instructions, (i) events or circumstances outside of StoreToDoor’s commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions), or (j) Action or Losses for which Client is obligated to indemnify StoreToDoor.
14.2 From Client. Client shall indemnify, defend and hold harmless StoreToDoor from and against any and all Losses incurred by StoreToDoor in connection with any Action by a third party to the extent that such Losses arise out of or relate to any allegation: (a) that any IP Right or other right of any Person, or any Law, is or will be infringed, misappropriated or otherwise violated by any (I) use by or on behalf of Client or any of its Representatives with any hardware, software, system, network, service or other matter whatsoever that is neither provided by StoreToDoor nor authorized by StoreToDoor in this Agreement, and information, materials or technology or other matter whatsoever directly or indirectly provided by Client or directed by Client to be installed, combined, integrated or used (b) of or relating to facts that, if true, would constitute a breach by Client of any representation, warranty, covenant or obligation under this Agreement, (c) of or relating to negligence, abuse, misapplication, misuse, injury, death, loss of or damage to real or tangible personal property, or more culpable act or omission (including fraud, recklessness or wilful misconduct) by or on behalf of Client or any of its Representatives or otherwise in connection with this Agreement, (d) by or on behalf of Client or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement, (e) arising from Client’s wilful violation of Applicable Laws or other obligations under this Agreement or in any manner contrary to StoreToDoor’s instructions.
14.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified under, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defence and investigation of such Indemnified Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
14.4 SOLE REMEDY. THIS ARTICLE SETS FORTH CLIENT’S SOLE REMEDIES AND STORETODOOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY IP RIGHTS OF ANY THIRD PARTY.
15. LIMITATION OF LIABILITY.
15.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL STORETODOOR, OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, RE-SELLERS, CONTRACTORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY (A) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (B) LOSS OF GOODWILL OR REPUTATION, (C) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY SOFTWARE OR OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (D) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (E) COST OF REPLACEMENT GOODS OR SERVICES, OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
15.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF STORETODOOR AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, RE-SELLERS, CONTRACTORS, SERVICE PROVIDERS OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO STORETODOOR UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16.1 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
16.2 Relationship. StoreToDoor is not a merchant, reseller, or delivery service. Client and StoreToDoor agree they are independent businesses whose relationship is governed by this Agreement. Nothing in the parties’ agreement, relationship, or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between StoreToDoor and Client (or Client’s Representatives or locations), StoreToDoor and Delivery Contractor, or StoreToDoor and End Customers and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Except as expressly set forth in the Agreement and these Service Terms, each party shall be responsible for its own expenses, profits and losses.
16.3 Users. Client is responsible and liable for the acts and omissions of Users related to this Agreement and to the products and services provided pursuant to this Agreement, as if they were Client’s own acts and omissions. Client shall take reasonable efforts to make all Users aware of this Agreement’s provisions as applicable to such User’s actions and shall cause Users to comply with such provisions.
16.4 Exclusivity. The Client agrees not to engage or use the services of any other delivery service, for deliveries on orders received from Shopify/ECommerce for delivery in the Delivery Zones during the Term. The Client will notify StoreToDoor immediately if any person makes any proposal, offer, inquiry, or contact with respect to any of the foregoing.
16.5 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver or other communication under this Agreement will have legal effect only if in writing and addressed to party as follows (or to such other address or such other person that such addressee party may designate from time to time in accordance with this Section):
If to StoreToDoor: 4906 Anthony Way, Regina, SK, S4X 0H4
Attention: Scott Love, Chief Executive Officer
If to Client: At the address or email provided on the first page of the Agreement.
Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 2nd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
16.6 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by a Force Majeure Event.
16.7 Currency. Unless otherwise stipulated, all payments required to be made pursuant to the provisions of this Agreement and all money amount references contained herein are in lawful currency of Canada.
16.8 Assignment. Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without StoreToDoor’s prior written consent. Any purported assignment, delegation or transfer in violation of this Section is void. This Agreement is binding on and enures to the benefit of the parties and their respective permitted successors and assigns.
16.9 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
16.10 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
16.11 Governing Law and Forum. This Agreement is governed by and construed in accordance with the Laws of the Province of Saskatchewan and the federal Laws of Canada applicable therein. Any Action arising out of or related to this Agreement will be instituted exclusively in the courts of the Province of Saskatchewan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such Action. Service of process notice or other document by mail to such party’s address set forth herein will be effective service of process for any Action brought in any such court. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
16.12 Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
16.13 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
16.14 Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.
16.15 Dispute Resolution. Should a dispute arise regarding any invoice or any other matter in connection with this Agreement, the parties agree that they shall meet and negotiate in good faith to attempt to resolve the dispute. If the dispute cannot be resolved though good faith negotiations between the parties within 5 days then either party may provide the other with written notice of the need to appoint a mediator. Should the parties fail to agree upon a mediator within 5 days after the notice or the parties fail to resolve the dispute by way of mediation then such dispute shall be finally resolved by binding arbitration pursuant to the provisions of The Arbitration Act, 1992 (Saskatchewan) (the “Act”), as from time to time in force or as amended. The arbitration shall be administrated by the Rules of the Court of Queen’s Bench and the Rules of the Court of Appeal for Saskatchewan, in accordance with section 58 of the Act. The arbitration shall take place in Saskatoon, Saskatchewan before a single arbitrator selected by agreement of the parties. Should the parties fail to agree on an arbitrator, the arbitrator shall be appointed by a court of competent jurisdiction pursuant to the Act. The costs of arbitration, including legal fees and disbursements, shall be awarded by the arbitrator in the manner which the arbitrator considers appropriate under the circumstances.
16.16 WAIVER OF CLASS ACTION. THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
16.17 Counterparts; Electronic Transmission. This Agreement may be executed in counterparts and such counterparts together shall constitute a single instrument. Delivery of an executed counterpart of this Agreement by electronic means, including, without limitation, by facsimile transmission or by electronic transmission of portable document format (“.pdf”) file or other electronic file, shall be equally effective as delivery of a manually executed counterpart. The parties hereto acknowledge and agree that in any legal proceedings between them respecting or in any way relating to this Agreement, each waives the right to raise any defence based on the execution in counterparts or the delivery of executed counterparts by electronic means.
16.18 Choice of Language. The parties have required that this Agreement and all documents and notices resulting from it be drawn up in English. Les parties aux présents ont exigés que la présente convention ainsi que tous les documents et avis qui s’y rattachent ou qui en découleront soit rédigés en la langue anglaise.
16.19 Fuel Surcharge Terms. Fuel surcharge will be applied to each delivery as stated below in the table. Fuel price is based on the provincial Average fuel price. This fuel surcharge is reviewed monthly and adjusted accordingly.