General Terms of Service
Effective Date: February 11, 2019
Last updated: June 24, 2021
These General Terms of Service (“Terms”) are by and between Fobi Ai Inc. (“Fobi”) and “Customer” (namely the customer identified in the applicable Order). Customer agrees that these Terms govern Customer’s use of the Service and Customer agrees to be bound by, and fully comply with, these Terms.
1. Defined Terms
Where used in these Terms, the following terms shall have the following meanings:
- “Affiliate” of a party shall mean and include any entity or association controlled by, controlling or under common control with such party and for the purposes of this definition, “control” shall mean: (i) the ownership of more than fifty percent (50%) of the voting shares of the subject entity or association; (ii) the right or power, directly or indirectly, to elect or remove directors; or (iii) the right or power to control management.
- “Agreement” means an Order and the corresponding legal terms incorporated therein by reference, including these Terms, as well as any other exhibits, addenda or attachments thereto.
- “Confidential Information” means: (i) any software utilised by Fobi in the provision of the Service and its respective source code; (ii) Raw Data and Customer Content; (iii) each party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (iv) the terms, conditions and pricing of this Agreement (but not its existence or parties).
- “Documentation” means documentation and other related materials, or any portion thereof, regardless of its form or medium, pertaining to the Service provided or made available by Fobi to Customer in conjunction with this Agreement, and shall include any abridgement or condensed form of such documentation, and any other work derived therefrom.
- “Hardware” has the meaning ascribed to it under the Fobi Hardware Policy and Limited Warranty available at: www.fobi.ai/hardware-warranty
- “Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Service and Documentation, as developed by Fobi and made generally available to Fobi’s customers from time to time without a separate charge.
- “Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.
- “Order” means the separate ordering documents under which Customer subscribes to the Service or other services pursuant to this Agreement.
- “Personal Information” has the definition set forth in the Fobi Privacy Addendum available at: https://www.fobi.ai/privacy-policy
- “Service” means Fobi’s platform-as-a-service applications, software-as-a-service applications and all corresponding Improvements as described in the Documentation and subscribed to under an Order Form.
- “SLA” means the Fobi Service Level Agreement incorporated into the Agreement (as applicable) which may be updated by Fobi from time to time. No such update shall materially decrease Fobi’s responsibilities under the SLA.
2. Provision of Service
Subject to Customer’s compliance with the terms and conditions of these Terms, Fobi will make the Service available to Customer in accordance with the Documentation, the SLA, and pursuant to the terms and conditions set out in these Terms.
Customer’s access to the Service is subject to Customer’s creation and maintenance of a valid account with Fobi (a “Customer Account”).
Further, Customer’s use of any Hardware provided by Fobi and installed at Customer location(s) in connection with the Service shall be subject to the Fobi Hardware Policy and Limited Warranty available at: [insert link]. For greater certainty, Fobi shall at all times be and remain the lawful owner of all Hardware.
Fobi hereby grants Customer permission to access the Service solely for its internal business purposes in accordance with the Documentation and not for the benefit of any third parties. Customer is responsible for all Customer Affiliate use of the Service and compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, and legality of all information submitted to Fobi, including, but not limited to, Customer Content; and (ii) use reasonable endeavours to prevent unauthorised access to, or use of, the Service, and notify Fobi promptly of any such unauthorised access or use. Customer shall not: (a) use the Service in violation of Laws; (b) in connection with use of the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (c) to the best of Customer’s knowledge, send or store malicious code in connection with use of the Service; (d) interfere with or disrupt performance of the Service or the data contained therein; or (e) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation.
Fobi may make Improvements to the Service from time to time. Any such Improvements may be subject to additional terms made known to Customer at that time, which additional terms shall thereafter be incorporated into and form part of these Terms.
3. Customer Account
Customer shall provide accurate and complete information in response to any requests for information made by Fobi in connection with opening a Customer Account, and Customer agrees to keep such information current. Customer is fully responsible for all activity that occurs under its Customer Account, including for any actions taken by persons to whom Customer has granted access to the Customer Account. Fobi reserves the right to change the account type and/or to suspend or terminate the Customer Account of any customer that provides inaccurate, untrue, or incomplete information, or that fails to comply with the account registration requirements.
Customer is responsible for safeguarding its password and for restricting access to the Service from its devices and computers. Customer will immediately notify Fobi of any unauthorized use of its password or Customer Account or any other security breach.
Fobi may provide disclosures and notices required by Law and other information about the Customer’s Account to Customer electronically, by posting it on Fobi’s website, pushing notifications through the Service, or by emailing Customer at the email address listed in its Customer Account. Such disclosures and notices are considered received by Customer within twenty-four (24) hours of the time posted to Fobi’s website, or within twenty-four (24) hours of the time emailed to Customer unless Fobi receive notice that the email was not delivered. If Customer wishes to withdraw its consent to receiving electronic communications, it should contact Fobi at the contact information below, provided, however, that Fobi may not be able to support the Customer’s request and correspondingly Customer may elect to terminate its Customer Account.
Except as otherwise contemplated in these Terms or with the prior written approval of Fobi, Customer may not, nor may Customer permit any third party, directly or indirectly, to:
- access or monitor any material or information on the Service using any manual process or robot, spider, scraper, or other automated means;
- except to the extent that any restriction is expressly prohibited by Law, violate the restrictions in any robot exclusion headers on the Service, work around, bypass, or circumvent any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service;
- perform or attempt to perform any actions that would interfere with the proper operation of the Service, prevent access to or use of the Service by Fobi’s other customers, or impose an unreasonable or disproportionately large load on Fobi’s infrastructure;
- copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way the Service or any other Fobi Confidential Information;
- use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement;
- transfer any rights granted to Customer under these Terms;
- use the Service for any illegal activity or goods or in any way that exposes Fobi, its Affiliates or other customers to harm; or
- otherwise use the Service except as expressly allowed under these Terms.
If Fobi reasonably suspects that Customer’s Account has been used for an unauthorized, illegal, or criminal purpose, Customer hereby grants Fobi express authorization to share information about Customer, the applicable Customer Account, and any of Customer’s interactions or use of the Service with law enforcement.
5. Raw Data, Customer Content and Fobi Insights
The Service enables the collection and uploading of all data collected or generated in connection with Customer’s use of the Service including, for greater certainty, Customer’s digital or printed customer receipts, wallet pass, venue tracing hardware, barcode scanner, and application programming interface integration data (the “Raw Data”). Customer shall retain all ownership rights and interests in and to the Raw Data, subject to the rights granted to Fobi pursuant to these Terms.
Further, the Service provides functionality for Customer to upload photos, documents, logos, products, loyalty programs, coupons, promotions, advertisements and other materials or information connected to Customer’s use of the Service (the “Customer Content”). Customer shall retain all ownership rights and interests in and to the Customer Content, subject to the rights granted to Fobi pursuant to these Terms.
All Customer Content uploaded or provided by Customer in relation to the Service is assumed to be correct and accurate and if Fobi is instructed by Customer to use said Customer Content, Fobi will not be responsible in any way to Customer or its business or customers should such Customer Content include an error. Customer will not upload or provide Customer Content or otherwise post, transmit, distribute, or disseminate through the Service any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches or infringes any duty toward or rights of any person or entity, including rights of publicity, privacy or intellectual property; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with Fobi’s or its partners’ products and services, as determined by Fobi in our sole discretion; or (f) in Fobi’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Service, or which may expose Fobi, its Affiliates or its customers to harm or liability of any nature.
Although Fobi has no obligation to monitor any Customer Content, Fobi retains absolute discretion to remove Customer Content at any time and for any reason without notice to Customer. Fobi may also monitor such Customer Content to detect and prevent fraudulent activity or violations of Fobi’s Terms. Customer understands that by accessing and using the Service, Customer may be exposed to Content that is offensive, indecent, or objectionable. Fobi takes no responsibility and assumes no liability for any Customer Content, including any loss or damage to Customer or any of its Customer Content.
For greater certainty, upon termination by Customer of its Customer Account, Customer may request that Fobi delete and/or return the Raw Data and/or Customer Content to Customer.
Customer hereby grants to Fobi and its Affiliates a non-exclusive, royalty-free, irrevocable, fully paid-up, sub-licensable, transferable and worldwide right and license in perpetuity to use, reproduce, modify, adapt, store, develop, publish and prepare derivative works of the Raw Data and the Customer Content, if any, to provide and/or incorporate into the Service. Further, Customer also hereby grants to Fobi and its Affiliates a non-exclusive, royalty-free, irrevocable, fully paid-up, sub-licensable, transferable and worldwide right and license in perpetuity to compile and analyze Raw Data and Customer Content on an aggregated, non-personal, and de-identified basis (“Aggregated Data”) and to share or otherwise disclose such Aggregated Data with Affiliates, agents, customers, and business partners, and to retain it for future use. For greater certainty, any Aggregated Data disclosed by Fobi shall be free from any identifiable Personal Information. The rights granted to Fobi above shall survive termination of Customer’s Account and use of the Service.
Without limiting the generality of the foregoing and Fobi’s rights to create and use Aggregated Data, as part of the Service provided by Fobi, Fobi may also apply its proprietary software to the uploaded Raw Data to structure it, in order to compile the Raw Data into a format(s) (the “Insights”), which Insights will be made available to Customer through the Service (an in particular on Fobi’s Dashboards). Customer acknowledges and agrees that Fobi is and shall be the sole owner of any such Insights and accordingly has the exclusive rights, without compensation to Customer, to use, reproduce, perform, modify, develop, access, collect, store, sell, exploit, resell, distribute, provide and transfer the Insights in perpetuity.
Fobi reserves all rights not expressly granted to Customer in these Terms. Fobi own all rights, title, interest, copyright and other Intellectual Property Rights (as defined below) in and to the Service, Aggregated Data, and the Insights and all copies of the Insights, Aggregated Data, and the Service. These Terms do not grant Customer any rights to Fobi’s trademarks or service marks.
For the purposes of these Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any province, state, country, territory or other jurisdiction.
Customer may submit comments or ideas about the Service (“Ideas”) to Fobi from time to time. By submitting any Idea, Customer agrees that Customer’s disclosure is gratuitous, unsolicited, and without restriction, that it will not place Fobi under any fiduciary, confidentiality or other obligation, and that Fobi is free to use the Ideas without any additional compensation to Customer, and/or to disclose the Ideas on a non-confidential basis or otherwise to anyone.
7. Confidentiality and Privacy
A party shall not disclose or use any Confidential Information of the other party except: (i) to those of its Affiliates, officers, directors, agents, employees, contractors, consultants and financial and legal advisors who have a need to know such Confidential Information as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement; or (ii) with the other party’s prior written permission.
Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
A disclosure by one party of Confidential Information of the other party to the extent required by Law shall not be considered a breach of this Agreement, provided the party so compelled promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure. Subject to the foregoing, in the event of any request by a government agency or law enforcement authority for access to the Raw Data or Customer Content, Fobi will seek to redirect the inquiry to Customer. In all such cases, Fobi will take all reasonable measures to protect the Raw Data and Customer Content and to inform Customer of such demand.
The parties acknowledge and agree that due to the unique nature of each party’s Confidential Information, damages alone would not be an adequate remedy for breach of any disclosure or use (or threatened disclosure or use) of a party’s Confidential Information. Accordingly, without prejudice to any other rights and remedies it may have, either party shall be entitled to seek equitable relief in any competent court or jurisdiction (including without limitation injunctive relief) concerning any threatened or actual disclosure or use of that party’s Confidential Information in breach of the terms of this Agreement.
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 other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) is received from a third party without breach of any obligation owed to the other party.
Fobi’s Privacy Addendum will apply to any processing by Fobi of any Personal Information.
Fobi has implemented technical and organizational measures designed to secure the Customer’s Confidential Information (including any Personal Information included therein) from accidental loss and from unauthorized access, use, alteration, or disclosure. However, Fobi cannot guarantee that unauthorized third parties will never be able to defeat those measures or use the Customer Content, the Raw Data or Personal Information for improper purposes. Accordingly, Customer acknowledges and agrees that it provides the Customer Content, Raw Data and Personal Information in relation to the Service and its use thereof at Customer’s own risk.
9. Service Fees
Subscription fees and all other fees due hereunder (collectively, the “Service Fees”) will be invoiced to Customer in accordance with the relevant Order. Invoices may be remitted by email or otherwise made available in Customer’s Account. All Service Fees will be due and payable within 30 days of the invoice date, except any Service Fees subject to a reasonable and good faith dispute.
The Service Fees may be paid by cheque, cash, credit card, by electronic transfer or by a money transfer service such as Western Union. If Customer links a credit card to its Customer Account, Customer authorize Fobi to collect the Service Fees from Customer’s linked credit card.
Fobi reserves the right to change the Service Fees upon thirty (30) days’ advance notice to Customer. Customer continued use of the Service after notice of a change to the Service Fees will constitute Customer’s agreement to such changes.
In the event any amount of the Service Fees owing by Customer to Fobi is not paid on its respective due date, Fobi shall consider such amount to be overdue (the “Overdue Amount”). All Overdue Amounts will be subject to interest at the rate of 12% per year, compounded monthly, not in advance from the due date to the date of payment. In the event Customer is in default of the payment of any of the Service Fees, Fobi reserves the right to (a) suspend Customer’s use of the Service; (b) refer the Overdue Amount to a collection agency for collection, in which case Customer will be liable to Fobi, as liquidated damages, for all the costs of recovery, including a collection agency’s commission, if any, along with the Service Fees; and (c) refer the Overdue Amount to a lawyer for collection, in which case, Customer will also be liable to pay, as liquidated damages, all reasonable legal fees incurred by Fobi.
10. Term and Termination
The Agreement commences on Customer’s acceptance of an Order and continues until the stated term in all Orders has expired or has otherwise been terminated, unless otherwise extended pursuant to the written agreement of the parties (the “Term”). Subscriptions to the Service commence on the date, and are for a period, as set forth in the applicable Order.
Fobi may terminate these Terms, or suspend or terminate the Customer Account or Customer access to the Service at any time if: (a) Customer has breached any provisions of these Terms or has acted in a manner that clearly shows Customer does not intend to or is unable to comply with the same; (b) Fobi is required to do so by law; (c) the provision of the Service by Fobi to Customer is, in Fobi’s opinion, no longer commercially viable; or (d) Fobi has elected to discontinue the Service or any part thereof. Fobi may add or remove, suspend, stop, delete, discontinue or impose conditions on the Service or any feature or aspect of the Service from time to time in its sole discretion upon notice to Customer, whether directly by email or within the Customer Account.
Customer may terminate the Agreement or cancel its access to all or a portion of the Service at any time by notifying Fobi with sixty (60) days’ prior written notice (the “Notice Period”). Customer will continue to have access to the terminated or cancelled Service through the end of the Notice Period, but Customer will not be entitled to a refund or credit for any Service Fees already due or paid. For greater certainty, Fobi’s Hardware Policy and Limited Warranty dictate what Customer is required to do in respect of the Hardware upon termination, suspension or cancellation.
11. Effect of Termination
If these Terms or Customer’s Account expires, is terminated or suspended for any reason by Fobi, or Customer cancels or deactivates its Customer Account: (a) the license and any other rights granted by Fobi to Customer under these Terms will immediately end and Customer shall cease use thereof and access thereto; (b) Fobi may (but shall have no obligation to unless requested by Customer) delete Customer Raw Data, the Customer Content, and any other information and account data stored on Fobi’s services related to Customer, and (c) Fobi will not be liable to Customer or any third party for compensation, reimbursement, or damages for any termination or suspension of the Service, or for deletion of the Raw Data, Customer Content or other account data.
In addition to any payment obligations under these Terms and the applicable Order, the following Sections of these Terms survive and remain in effect in accordance with their terms upon termination: 5 (Raw Data, Customer Content and Fobi Insights), 6 (Ownership), 7 (Confidentiality and Privacy), 12 (Indemnity), 13 (Representations and Warranties), 14 (Limitation of Liability and Damages), 18 (Third Party Products and Services), 16 (Disputes), 17 (Binding Individual Arbitration), 18 (Governing Law), 19 (Limitation on Time to Initiate a Dispute), and 20 (Other Provisions).
For greater certainty, Customer shall, within 14 days of any expiration, termination or cancellation of these Terms, at Customer’s cost, return all Hardware provided to Customer by Fobi in relation to the Service to Fobi’s offices. Should Customer refuse or fail to do so, Fobi may, in its sole discretion, either, (i) notify Customer that the full replacement cost of the Hardware will become an Overdue Amount (as defined in Section 10 hereof) and will become due and payable as of the date of expiration, termination or cancellation, and, in terms of collection of said Overdue Amount from Customer, will be subject to these Terms as they pertain to the collection by Fobi of Overdue Amounts; or (ii) Fobi shall have all the rights as the owner of the Hardware, including, without limitation, the right to re-take the Hardware, wherever found, and the right to enter the premises where the Hardware is located in order to disconnect and remove it. Within 7 days of expiration, termination or cancellation, Customer will pay to Fobi all amounts of the Service Fees accrued, due and owing to Fobi as a result of its provision of the Service to Customer to the date of expiration, termination or cancellation, failing which, all such amounts shall become Overdue Amounts.
Customer will indemnify, defend, and hold Fobi and its licensors and suppliers (and each of their respective employees, directors, agents, Affiliates, and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of Customer representations, warranties, or obligations set forth in these Terms; (b) Customer wrongful or improper use of the Service; (c) Customer violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) Customer violation of any law, rule or regulation of Canada, the United States or any other country; and (e) any other party’s access and/or use of the Service with Customer’s unique name, password or other appropriate security code.
Fobi will indemnify, defend, and hold Customer and its licensors and suppliers (and each of their respective employees, directors, agents, Affiliates, and representatives) harmless from and against any loss, liability, damage, award, settlement, judgment, fee, cost and expense (including attorneys’ fees) arising out of or alleging that the Service or Documentation, as applicable, infringes any third party’s intellectual property rights; provided, however, that Customer: (a) promptly gives written notice of the claim to Fobi; and (b) allows Fobi to take sole control of the defence and settlement of the claim (provided that Fobi may not settle any claim unless the settlement unconditionally releases Customer of all liability). In the case of any such infringement, Fobi may, at its option, either: (i) use commercially reasonable efforts to obtain the right for Customer to continue use of the Service, (ii) modify the Service in order to be non-infringing; (iii) replace the Service, as applicable, with a functional equivalent; or (iv) direct Customer to discontinue use and discuss reasonable alternative arrangements for providing the affected Service, as applicable.
13. Representations and Warranties
Customer represents and warrants to Fobi that: (a) Customer has all right, power, and ability to enter into and perform under these Terms; (b) any information Customer provides in connection with the Service, including Customer business name, accurately and truthfully represents Customer’s business or personal identity under which Customer sells goods and services; (c) Customer and all transactions initiated by Customer will comply with all federal, provincial, state, and local laws, rules, and regulations applicable to Customer and/or Customer’s business; (d) Customer will not use the Service, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Service; and (e) Customer’s use of the Service and the Insights will be in compliance with these Terms and applicable Laws.
THE USE OF “FOBI” IN SECTIONS 13 AND 14 MEANS FOBI, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).
THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, FOBI SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
FOBI DOES NOT WARRANT OR GUARANTEE THAT THE SERVICE IS ACCURATE, RELIABLE OR CORRECT, INCLUDING PROMOTIONS OR OFFERS OR DESCRIPTIONS PROVIDED OR UPLOADED BY CUSTOMER TO THE SERVICE; THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Fobi does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party. Fobi does not have control of, or liability for, goods or services that are paid for using the Service.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
14. Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FOBI BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. IN ALL CASES, FOBI WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FOBI BE LIABLE FOR ANY DAMAGE, PROPERTY DAMAGE, LOSS, INJURY, DAMAGES RESULTING FROM LOSS OF PROFITS, GOODWILL, USE DATA OR OTHER INTANGIBLE LOSSES CAUSED BY THE HARDWARE OR ANY MALFUNCTION THEREOF.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF FOBI IS LIMITED TO THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER IN CONNECTION WITH THE SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FOBI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT:
- FOBI’S TOTAL LIABILITY ARISING OUT OF A BREACH OF FOBI’S CONFIDENTIALITY OR SECURITY OBLIGATIONS SHALL BE LIMITED TO TWO(2) TIMES THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER IN CONNECTION WITH THE SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY; AND
- THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT SHALL NOT APPLY TO FOBI’S INDEMNITY OBLIGATIONS UNDER SECTION 12 OR TO ANY CLAIMS OR LOSSES ARISING IN RELATION TO THE GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT OF A PARTY OR OF ANY PARTY FOR WHICH FOBI IS RESPONSIBLE AT LAW.
15. Third Party Products and Services
As part of the provision of the Service by Fobi to Customer, Fobi may rely on the services of third parties including but not limited to hosting services, development services or manufacturing services (“Third Party Services”). Customer agrees that if Customer uses the Third Party Services, Customer will be responsible for reviewing and understanding the terms and conditions for such services. Fobi is not responsible or liable for the performance of any Third Party Services. Further, Customer agrees to resolve any disagreement between Customer and a third party regarding the terms and conditions of any Third Party Services with that third party directly in accordance with the terms and conditions of that relationship, and not Fobi.
For greater certainty, all third-party hardware and other products included or sold with the Service are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, Customer should contact the manufacturer directly. FOBI MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
“Disputes” are defined as any claim, controversy, or dispute between Customer and Fobi, its processors, suppliers or licensors (or their respective Affiliates, agents, directors or employees), including any claims relating in any way to these Terms or the Service, or any other aspect of the relationship between Fobi and Customer.
17. Binding Individual Arbitration
Customer and Fobi agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. CUSTOMER WAIVES ANY RIGHT TO HAVE CUSTOMER’S CASE DECIDED BY A JURY AND CUSTOMER WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST FOBI. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the International Centre for Dispute Resolution Canada (https://www.icdr.org). Any arbitration hearing will occur in Vancouver, British Columbia, Canada unless Customer and Fobi agree to another location or a location ordered by the arbitrator. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Fobi will pay the arbitration fees due to the arbitrator for individual arbitrations brought in accordance with this Section. If Customer prevails on any claim for which Customer is legally entitled to legal fees, Customer may seek to recover those fees from the arbitrator. For any claim where Customer is seeking relief, Fobi will not seek to have Customer pay its legal fees, even if fees might otherwise be awarded, unless the arbitrator determines that Customer’s claim was frivolous. For purposes of this arbitration provision, references to Customer and Fobi also include respective subsidiaries, Affiliates, agents, employees, predecessors, successors and assigns as well as authorized users of the Service. Subject to and without waiver of the arbitration provisions above, Customer agrees that any judicial proceedings involving Fobi will be brought in and Customer hereby consents to the exclusive jurisdiction and venue in the provincial or federal courts in the city of Vancouver, British Columbia, Canada.
18. Governing Law
These Terms and any related Dispute will be governed by British Columbia law and/or applicable Canadian federal law, without regard to choice of law or conflicts of law principles.
19. Limitation on Time to Initiate a Dispute
Any action or proceeding by Customer relating to any Dispute must commence within one year after the cause of action arises.
20. Other Provisions
- Assignment. Customer will not assign this Agreement to any third party without Fobi’s prior written consent. Fobi may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.
- International Use. Although the Service may be accessible worldwide, Fobi make no representation that materials connected with the Service are appropriate or available for use in locations outside Canada, and accessing them from territories or jurisdictions where their contents are illegal is prohibited. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with the Service is void where prohibited.
- Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond Fobi’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Fobi’s employees), Internet service provider failures or delays, or the unavailability or modification by third parties of third party websites.
- Waiver. No waiver of any provision of these Terms will be deemed a further or continuing waiver of such provision or any other term.
- Severable. If any provision of these Terms is invalid or unenforceable under applicable Law, then it will be severed, changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable Law, and the remaining provisions will continue in full force and effect.
- Independent Contractors. Customer’s relationship to Fobi is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Fobi.
- Publicity. Fobi may refer to Customer as being a customer of Fobi and may use Customer’s corporate name and logo for this purpose, without prior consent from Customer.
For questions, comments or concerns regarding these General Terms of Service, please contact Fobi at email@example.com.