Version No. 05.15.14 (Canada)
This Subscription Agreement for Raange™ Services (this “Agreement”) is by and between Raange Interactive, Inc. (“Raange”) and the Customer referenced in the applicable Purchasing Documents (collectively, the “Parties” and each a “Party”). This Agreement is comprised of the following documents (each a “Contract Document”): (a) Purchasing Documents; (b) the General Terms and Conditions set forth below; and (c) a Service Schedule for each Raange Service that Raange has agreed to make available to Customer pursuant to this Agreement.
GENERAL TERMS AND CONDITIONS
1. Definitions and Interpretation
1.1 Definitions: In this Agreement, the following terms have the following meanings and other capitalized terms have the meaning set forth elsewhere in this Agreement:
(a) “Authorized User” means an individual authorized by Customer to remotely access and use the Raange Administration Website.
(b) “Customer Branding” means trademarks and other branding of Customer provided by or on behalf of Customer to Raange for use by Raange to perform or provide a Service to or for the benefit of Customer.
(c) “Customer Content” means information, data and other materials (other than Customer Branding) provided by or on behalf of Customer to Raange for use by Raange to perform or provide a Service to or for the benefit of Customer.
(d) “Documentation” means documentation regarding a Raange Service or the Raange Administration Website made available by Raange to Customer from time to time.
(e) “Mobile App” means a mobile device software application created by or on behalf of Raange and designed to enable an individual to access and use services operated by Raange.
(f) “Professional Services” means services performed by or on behalf of Raange relating to the implementation and use of a Raange Service by or on behalf of Customer pursuant to this Agreement.
(g) “Purchasing Document” means a document (e.g. an order form, subscription registration notice or invoice) that identifies Customer and specifies details of a subscription by Customer for a Service under this Agreement and is either: (i) issued to Customer by Raange to confirm Customer’s order for Services; or (ii) signed by both Raange and Customer.
(h) “Raange Administration Website” means a website that may be accessed and used by Authorized Users on behalf of Customer to administer and use certain aspects of a Raange Service, including downloading certain data and reports (if applicable) relating to the Raange Service.
(i) “Raange Equipment” means equipment that Customer is required to install and use at Customer’s retail stores in connection with a Raange Service.
(j) “Raange Service” means a service that is identified as a “Raange Service” in a valid and subsisting Service Schedule.
(k) “Raange Service Data” means data that is collected or otherwise created by Raange as part of a Raange Service specifically for the benefit of Customer and that is made available to Customer as part of the Raange Service, as expressly set forth in the Documentation for the Raange Service.
(l) “Raange System” means the technologies, infrastructure (including Raange Equipment), information and data (including the Raange Administration Website) used by Raange to provide Services.
(m) “Representatives” means directors, officers, employees, contract workers, agents and other personnel and representatives.
(n) “Services” means all services (including Raange Services and Professional Services) provided by Raange to or for the benefit of Customer pursuant to this Agreement.
(o) “Service Schedule” means a written schedule to this Agreement that identifies and describes a Raange Service and specifies additional terms and conditions applicable to the Raange Service.
(p) “Service Term” means the initial term and all renewal terms (if any) of a Raange Service, as set forth in section 2.3.
1.2 Conflict of Provisions: If there is a conflict or inconsistency between any Contract Documents, then: (a) a Contract Document that expressly states that it amends or takes priority over specific provisions in another Contract Document will take priority over the specified provisions in the other Contract Document; and (b) in the absence of an express statement that a Contract Document amends or takes priority over specific provisions in another Contract Document, the order of precedence is as follows: (i) these General Terms and Conditions; (ii) Service Schedules; and (iii) Purchasing Documents.
2.1 Raange Services: Customer’s subscription for a Raange Service will be expressly specified in a Purchasing Document. Subject to the provisions of this Agreement, Raange will perform and provide each Raange Service for which Customer has a valid and subsisting subscription throughout the applicable Service Term.
2.2 Details of Service: The details of each Raange Service will be set forth in a Service Schedule. Each Service Schedule is incorporated into and forms part of this Agreement, and a reference to “this Agreement” includes all valid and subsisting Service Schedules.
2.3 Service Term: Unless the applicable Service Schedule or a Purchasing Document expressly states otherwise: (a) the initial term of a Raange Service will commence on the Commencement Date specified in the applicable Purchasing Document and will continue for either twelve (12) months or an alternative initial term duration specified in the applicable Purchasing Document, unless terminated earlier pursuant to this Agreement; and (b) following the initial term of a Raange Service, the Raange Service will automatically renew for consecutive additional twelve (12) month periods unless: (i) the Raange Service is terminated earlier pursuant to this Agreement; or (ii) a Party gives notice of non-renewal to the other Party by no later than thirty (30) days before the end of the then-current term of the Raange Service.
2.4 Restrictions/Requirements: Customer will ensure that Customer and Authorized Users use each Raange Service in accordance with the applicable Documentation. Customer will not, and will ensure that Authorized Users do not: (a) access or use a Raange Service, a Raange System, Documentation or Raange Service Data in any manner, by any means, or for any purpose not expressly permitted by this Agreement; (b) attempt to circumvent the ordinary navigational structure, technical delivery systems or display of a Raange Service or a Raange System or otherwise attempt to access or use a Raange Service or a Raange System by any means that is not purposely made available for that purpose by Raange; (c) access or use a Raange Service or a Raange System in a way that interferes with or threatens, damages, disrupts, compromises or degrades the integrity, functionality, operation, performance or security of the Raange Service, the Raange System (as applicable) or any other Raange Service or Raange System; (d) except as expressly permitted by this Agreement, copy, reproduce, translate, modify, enhance, or create derivative works from a Raange Service or Raange Service Data; (e) license, sublicense, grant, sell, share, transfer, assign, pledge, create an interest in, or otherwise give or make available or permit the use of a Raange Service, a Raange System, Documentation or Raange Service Data or the functionality or performance of a Raange Service or a Raange System or any results of the use of a Raange Service, a Raange System or Raange Service Data to or for the benefit of any other person, whether as a service bureau or otherwise, and whether with or without charge; (f) alter, attempt to circumvent, destroy, obscure, or remove any notices (including trademark and copyright notices), proprietary codes or locks, means of identification, digital rights tools or management information, security or control measures, or agreements (including end user terms and conditions) on, in or in relation to a Raange Service, a Raange System, Documentation or Raange Service Data; (g) access or use a Raange Service, a Raange System or Documentation in order to: (i) create a product or service that is competitive with a Raange Service or any other product or service offered by Raange, or a product or service using similar ideas, features or functions; or (ii) copy any ideas, features or functions of a Raange Service or a Raange System; or (h) permit, assist or encourage any other person to do any of the foregoing in this section 2.4 or to commit an act or omission that would be a breach of this Agreement if committed by Customer or an Authorized User. A restriction set forth in this section 2.4 does not apply if and to the extent, but only to the extent, that the restriction is prohibited by applicable law.
2.5 Raange Systems: Raange will have sole control over the operation, maintenance and support of each Raange System.
2.6 Mobile Apps: Raange in its discretion will make one or more Mobile Apps available for download, through applicable third party online app stores, by individuals who wish to access and use the Mobile App in connection with a Raange Service. Raange will have sole control over the creation, distribution, maintenance and support of each Mobile App. The downloading and use of a Mobile App will be governed by the end user license agreement or other terms and conditions (specified by Raange in its discretion) that apply to the Mobile App.
2.7 Signage: If Raange provides Customer with signs or stickers for use by Customer in connection with a Raange Service, then: (a) Customer is solely responsible for properly installing the signs and stickers; and (b) upon expiration or termination of the relevant Raange Service, Customer will promptly uninstall, and either destroy or return to Raange, the signs and stickers.
2.8 Raange Equipment: If Raange provides Customer with an item of Raange Equipment, then: (a) Raange will retain ownership of the item of Raange Equipment, unless a Service Schedule or Purchasing Document expressly state otherwise; (b) Customer is solely responsible for properly installing and operating the item of Raange Equipment, unless the applicable Purchasing Document expressly states otherwise; (c) Customer will use commercially reasonable efforts to protect the item of Raange Equipment against unauthorized access or improper use; (d) Customer is fully responsible and liable for all loss or damage to the item of Raange Equipment, except for normal wear and tear; and (e) upon expiration or termination of the relevant Raange Service, Customer will promptly return the item of Raange Equipment to Raange in the same condition (excluding normal wear and tear) as when the item was provided by Raange to Customer. If Customer fails to promptly return an item of Raange Equipment, or if an item of Raange Equipment is damaged, then Customer will purchase the item from Raange for the applicable purchase price specified in Raange’s standard fee schedule.
2.9 Continuous Improvement: Raange in its discretion may modify and improve Raange Services and Raange Systems (including by adding new features and functionalities to a Raange Service and improving the performance of a Raange System) on an ongoing basis.
2.10 Professional Services: Upon request by Customer, Raange in its discretion may agree to provide to Customer Professional Services (including Authorized User training and other services relating to Customer’s implementation of a Raange Service) as set forth in a Purchasing Document (including a related statement of work). A statement of work regarding Professional Services will not be valid or binding unless and until it is in writing and signed by both Parties. Professional Services may be subject to additional terms and conditions set forth or referenced in the applicable Purchasing Document or statement of work.
3. Customer Branding and Customer Content
3.1 General: If the Service Schedule or Documentation for a Raange Service indicates that the Raange Service will use or display Customer Branding or Customer Content, then: (a) Customer will promptly provide the required Customer Branding and required Customer Content to Raange; and (b) Customer will ensure that: (i) Customer Branding and Customer Content complies with the applicable restrictions and requirements set forth or referenced in the Service Schedule or Documentation for the Raange Service and with all applicable laws; (ii) Customer Content is accurate, current and complete; and (iii) the use of Customer Branding and Customer Content by Raange as contemplated by this Agreement does not and will not infringe the rights (including intellectual property rights) of any person.
3.2 License for Customer Branding and Customer Content: Customer hereby grants and agrees to grant to Raange a non-exclusive, royalty-free right and license to use (including reproduce, reformat, adapt, edit, enhance, translate, host, store, backup, archive, combine with and incorporate into other works, display, distribute, publish and communicate, including by telecommunication) Customer Branding and Customer Content solely for the purposes of performing and providing Services to and for the benefit of Customer and performing Raange’s obligations and exercising Raange’s rights under this Agreement. All of the benefit and goodwill associated with Raange’s use of Customer Branding will enure entirely to Customer.
3.3 Removal of Customer Branding and Customer Content: Raange in its discretion may refuse to use or cease using Customer Branding or Customer Content if Raange reasonably believes that Customer Branding or Customer Content does not comply with the restrictions or requirements set forth or referenced in this Agreement.
3.4 Raange Branding: Raange in its discretion will include or display Raange’s proprietary branding on or in each Raange Service (including in electronic messages and other consumer-facing items) in a manner that is reasonable and appropriate for the nature of the Raange Service. Customer will not conceal, modify or remove Raange branding from any aspect of a Raange Service.
4. Authorized Users
4.1 General: Customer will access and use the Raange Administration Website only through Authorized Users who are registered with the Raange Administration Website and have valid and subsisting Credentials (defined in section 4.4). Customer will ensure that each Authorized User accesses and uses the Raange Administration Website only on behalf of Customer and strictly in accordance with the restrictions and requirements set forth in this Agreement and Documentation. A Service Schedule or Purchasing Document may specify the maximum number of Authorized Users who may be registered at any one time to use the Raange Administration Website in respect of a Raange Service.
4.2 Administrators: Customer will authorize one or more Authorized Users (each an “Administrator”) to administer use of the Raange Administration Website by other Authorized Users. A Service Schedule or Purchasing Document may specify the maximum number of Administrators in respect of a Raange Service.
4.3 Registration/Changes/Termination: The Raange Administration Website will permit an Administrator to authorize and terminate other Authorized Users’ registration to use the Raange Administration Website. Customer may submit (including by email) to Raange a written request that Raange terminate an Administrator’s registration to use the Raange Administration Website. Raange, acting reasonably, may refuse to register an individual as an Authorized User, and may restrict, suspend or terminate (in whole or in part) an Authorized User’s registration to use the Raange Administration Website. Each Authorized User will be considered to be an active Authorized User unless and until the Authorized User’s registration to use the Raange Administration Website is terminated by an Administrator or Raange in accordance with this Agreement.
4.4 Credentials: The Raange Administration Website will require each Authorized User to use a valid and subsisting user name and one or more unique identifiers registered with the Raange Administration Website (collectively “Credentials”) in order to use the Raange Administration Website. Credentials are specific to the Authorized User for whom they are registered, and may not be shared with or transferred to any other person. Customer will ensure that each Authorized User keeps the Authorized User’s Credentials secure and confidential at all times, does not permit any other person to use the Authorized User’s Credentials, and immediately notifies Raange if the Authorized User knows or suspects that the Authorized User’s Credentials have become known to or used by any other person. Customer is fully responsible and liable for the security of all Credentials and all use and misuse of Credentials. Raange in its discretion may require proof at any time of the identity and authority of any person using Credentials and may refuse to accept or act upon any communication if Raange is not satisfied with the provided proof. If Raange, in its discretion, considers Credentials to be unsecure or to have been used inappropriately, then Raange may immediately cancel the Credentials without any notice to Customer, the affected Authorized User or any other person. Raange in its discretion may require Authorized Users to change Credentials from time to time.
4.5 Monitoring Use: The Raange Administration Website contain technologies that monitor, record and report to Raange information regarding each Authorized User’s use of the Raange Administration Website, and Raange may use that information for system administration purposes and to provide Services to Customer, and may disclose or make that information available to Customer and Customer’s other personnel (including Administrators). Customer will obtain from each Authorized User informed consent to the collection, retention, use, storage, processing and disclosure of information regarding the Authorized User’s use of the Raange Administration Website as set forth in this section 4.5 and as otherwise permitted by applicable law.
4.6 Responsibility: Customer is fully responsible and liable for all acts and omissions by or on behalf of each Authorized User and the Authorized User’s use of the Raange Administration Website and any data (including Raange Service Data) obtained through the Raange Administration Website. Customer will ensure that each Authorized User fully complies with all of the requirements, restrictions and limitations set forth or referenced in this Agreement regarding Services and Documentation.
5. Raange Service Data
5.1 Customer Rights: Subject to the provisions of this Agreement and applicable law, Customer will have an unrestricted right to retain and use all Raange Service Data provided or otherwise made available by Raange to Customer.
5.2 Raange Rights: Raange will retain and use Raange Service Data for the sole purpose of performing Raange’s obligations and exercising Raange’s rights under this Agreement and as required by applicable law.
(a) General: Raange will use commercially reasonable efforts appropriate to perceived risk to provide a commercially reasonable level of security for Raange Systems to maintain the confidentiality and integrity of Raange Service Data while stored in a Raange System. Unless a Service Schedule expressly states otherwise, Raange may store and process Raange Service Data at facilities located in Canada, the United States of America and other countries. Raange is not responsible for the security or integrity of Raange Service Data that is transmitted outside a Raange System.
(b) Notification: If Raange becomes aware of a security breach of Raange Systems that affects the security of Raange Service Data while stored in a Raange System, Raange will immediately notify Customer of the security breach, inform Customer of the steps being taken by Raange to resolve the security breach and prevent similar security breaches in the future, and reasonably cooperate with Customer to mitigate the adverse effects of the security breach. For greater certainty, Raange is not responsible for the security or integrity of Raange Service Data that is transmitted outside a Raange System.
5.4 Customer Access to Raange Service Data:
(a) During Term: During the term of this Agreement, Authorized Users may use the Raange Administration Website to access and download Raange Service Data.
(b) After Term: Upon expiration or termination of this Agreement: (i) Raange will store all Raange Service Data that is then in a Raange System for a period of thirty (30) days (the “Data Storage Period”); and (ii) upon request by Customer during the Data Storage Period, Raange will permit Customer to use the Raange Administration Website to download a full and complete copy of the Raange Service Data.
5.5 No Data Storage: Services are not data storage or data back-up services. After Customer (through an Authorized User) has downloaded Raange Service Data using the Raange Administration Website: (a) Customer is solely responsible for storing and protecting the Raange Service Data against loss and damage (including by making appropriate back-ups); and (b) Raange in its discretion may permanently delete and destroy all copies of the Raange Service Data from the Raange System.
5.6 Shared Data: Customer acknowledges that Raange Services may result in the creation of certain kinds of data intended for concurrent use by Customer, other Raange customers and Raange on its own behalf, and in those circumstances each of Customer, other Raange customers and Raange will have the unrestricted right to retain and use the data.
6.1 Fees/Charges: Customer will pay to Raange the fees and charges for Services and related items specified in each Purchasing Document and as otherwise set forth in this Agreement. Unless a Service Schedule or Purchasing Document expressly states otherwise, recurring periodic fees and charges for Services are payable in advance and other kinds of fees and charges are payable upon performance or delivery of the applicable Service or item.
6.2 Taxes: Fees and charges are exclusive of all applicable federal, state, provincial, and municipal sales, use, value-added, property, excise, import, foreign, withholding and other governmental taxes, duties, charges, levies, fees, excises, tariffs and assessments of any nature whatsoever now or hereafter imposed (collectively, “Taxes”). Customer is solely responsible and liable for, and will pay and remit promptly, all Taxes (other than corporate income taxes payable by Raange) associated with, based on or due as a result of fees and charges payable under this Agreement, and all related interest, penalties and expenses.
6.3 Invoices/Payments: Raange will issue invoices for fees and charges, and certain applicable Taxes, payable by Customer under this Agreement. Unless a Purchasing Document expressly states otherwise, each invoice is due and payable within thirty (30) days after the date of the invoice. Payment obligations are non-cancellable and advance payments are non-refundable (except as expressly set forth in this Agreement). Overdue payments are subject to interest at a rate of 1% for each month (12% per annum) or fraction thereof that the payment is overdue, or the highest rate permitted by applicable law, whichever is lower. Except to the extent required by applicable law, all amounts payable to Raange under this Agreement are payable in full without any deduction or withholding.
6.4 Fee Increases: Raange may change the fees and charges payable for a Raange Service effective upon ninety (90) days’ notice to Customer. If a change in fees or charges is not acceptable to Customer, then Customer for its sole convenience may terminate the Raange Service effective upon thirty (30) days’ notice of termination to Raange provided that the notice of termination is given to Raange within thirty (30) days after the date on which Customer receives notice of the change in fees and charges.
7. Ownership/Proprietary Rights
7.1 Customer Branding and Content: Except for the limited licenses expressly set forth or referenced in this Agreement (including section 3.2): (a) as between the Parties, Customer and its licensors will at all times solely own and retain all rights, title and interests (including all intellectual property rights) throughout the world in, to and associated with Customer Branding and Customer Content; and (b) Raange will not acquire any right, title or interest in, to or associated with any Customer Branding or Customer Content.
7.2 Services/Systems/Data: Except as expressly set forth in this Agreement: (a) as between the Parties, Raange and its licensors will at all times solely own and retain all rights, title and interests (including all intellectual property rights) throughout the world in, to and associated with each Service and each Raange System and all data contained in each Raange System; and (b) Customer will not acquire any right, title or interest in, to or associated with any Service or any Raange System or any of the data contained in a Raange System.
7.3 Feedback: If Customer or an Authorized User gives feedback (including ideas or suggestions for enhancements or improvements) to Raange about a Service, a Raange System or Documentation, then Raange and its licensors and their respective successors, assigns and licensees may use and commercialize the feedback without providing any compensation to Customer or any other person (including any Authorized User). For greater certainty, Customer and Authorized Users will not include in feedback to Raange any information that is confidential or proprietary to Customer or any other person.
7.4 Software/Technologies: Notwithstanding any other provision of this Agreement, and for greater certainty, under no circumstances will Raange be obligated to provide, nor will Customer or any other person be entitled to directly or indirectly receive, obtain, access or use, a copy of any of the software or other technologies that comprise a Raange System or are used by or on behalf of Raange to provide Raange Services.
7.5 Trademarks: RAANGE and the Raange logo and other related logos and marks are registered or unregistered trademarks of Raange or its licensors. Customer does not have any license or right to use any of those trademarks.
7.6 Reservation of Rights: All rights not expressly granted by a Party under this Agreement are reserved to the Party.
8. Other Matters
8.1 Representations/Warranties of Customer: Customer represents and warrants to Raange that Customer has the right, power, capacity and authority to enter into this Agreement and perform Customer’s obligations and exercise Customer’s rights under this Agreement, and that Customer’s entering into this Agreement and performance of Customer’s obligations under this Agreement will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) now or in the future owed by Customer to any other person.
8.2 Technical Requirements: Customer is solely responsible and liable for obtaining, provisioning, configuring, maintaining, paying for, and protecting from loss and damage, all equipment (including personal computers), software and services (including Internet access) necessary for use of Services (including access to and use of the Raange Administration Website) by or on behalf of Customer.
8.3 Notice of Unauthorized Use: Customer will promptly notify Raange if Customer knows of or suspects any unauthorized access to or use of Services.
8.4 Complaints: Customer will promptly give notice to Raange if Customer becomes aware of a complaint, claim or allegation by any other person arising from, connected with or relating to a Raange Service or Customer’s use of a Raange Service, and upon request by Raange, Customer will cooperate with and assist Raange to investigate and respond to the complaint, claim or allegation (as applicable).
8.5 Subcontractors/Service Providers: Raange in its discretion may engage subcontractors or third-party service providers to assist Raange to perform and provide Services, but Raange will remain fully responsible for Services.
8.6 Emergencies: Raange may temporarily suspend a Service or the operation of a Raange System in order to prevent or remedy unauthorized access to or use of the Service or the Raange System, including any actual or attempted access to or use of a Service or a Raange System that interferes with or threatens, damages, disrupts, compromises or degrades the integrity, functionality, operation, performance or security of the Service or the Raange System, or if Raange reasonably believes that the temporary suspension is reasonably necessary to prevent an imminent risk of harm, liability, loss or damage.
8.7 Legal Compliance:
(a) General: Customer will ensure that Customer’s use of Services, Documentation and Raange Service Data complies with all applicable laws, including all laws relating to data security, privacy, personal information protection, commercial electronic messages, consumer protection and truth in advertising.
(b) TCPA: Without limiting the generality of section 8.7(a), Customer will ensure that Customer’s use of Raange Service Data (including Customer’s sending of commercial electronic messages based on Raange Service Data) complies with Telephone Consumer Protection Act of 1991 law (commonly known as “TCPA”).
(a) General: Except as required by applicable law, Customer will not disclose to any person any information regarding the fees and charges payable by Customer under this Agreement or any special terms and conditions included in a Purchasing Document.
(b) No Disclosure of Confidential/Regulated Information: Customer will not disclose to Raange any information that Customer considers to be confidential or proprietary to Customer or any other person or any information (including personal information) the disclosure or use of which is regulated by applicable law.
(a) Defence and Indemnity: Customer will defend, indemnify and hold harmless Raange and Raange’s Representatives from and against any and all claims, complaints, demands, actions, suits and proceedings by any person, including a regulatory authority (each a “Third Party Claim/Proceeding”) and all resulting liabilities and obligations (including damages, administrative monetary penalties, financial sanctions, settlement payments, expenses and costs, including lawyer’s fees) arising from, connected with or relating to Customer’s use of a Service, Documentation, Raange System or Raange Service Data, or any negligence, misconduct or breach of this Agreement or actual or alleged violation of applicable law (including TCPA) by or on behalf of Customer or a person for whom Customer is responsible under this Agreement or at law.
(b) Procedure: If Raange requests that Customer defend and indemnify Raange or any other person in respect of a Third Party Claim/Proceeding pursuant to section 8.9(a), then Raange will: (i) give Customer prompt notice of the Third Party Claim/Proceeding and any related demand (provided that a failure to give prompt notice will only relieve Customer of Customer’s obligations under section 8.9(a) if the failure to give prompt notice has caused, or is likely to cause, prejudice to Customer); (ii) grant control of the defence and settlement of the Third Party Claim/Proceeding to Customer (provided that Customer will not settle the Third Party Claim/Proceeding in a way that requires Raange or any of Raange’s Representatives to be a party to the settlement or imposes any obligation on Raange or any of Raange’s Representatives without Raange’s prior written consent, which consent will not be unreasonably withheld or delayed); (iii) agrees that the same legal counsel may jointly represent Raange, Customer and all other defendants; and (iv) upon request by Customer, reasonably cooperates with and assists Customer regarding the defence and settlement of the Third Party Claim/Proceeding. Raange and Raange’s Representatives retain the right to participate (with counsel of their own selection at their sole cost and expense) in the defense of and settlement negotiations relating to any Third-Party Claim/Proceeding.
8.10 IP Infringement Remedies: If at any time a Raange Service is, or in Raange’s opinion is likely to become, the subject of a claim or allegation of infringement or misappropriation of third party intellectual property rights, then Raange in its discretion and at its own expense will either: (a) obtain the right to continue to provide the Raange Service to Customer, and authorize the Customer to use the Raange Service in accordance with this Agreement; or (b) modify the Raange Service to make it non-infringing; or (c) terminate the Raange Service and promptly pay to Customer an amount equal to the unused portion of any fees or charges for the Raange Service that were paid in advance by Customer. This section 8.10 states Customer’s sole and exclusive remedies, and Raange’s entire responsibility and liability, for any claims and proceedings arising from, connected with, or relating to any actual or alleged infringement or misappropriation of any rights (including any intellectual property right) of any third party. This section 8.10 states Customer’s sole and exclusive remedies, and Raange’s entire responsibility and liability, for any and all claims, complaints, demands, actions, suits and proceedings arising from, connected with, or relating to any actual or alleged infringement or misappropriation of any rights (including any intellectual property right) of any unaffiliated person.
9.1 GENERAL DISCLAIMER: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE, QUALITY, RESULTS, SUITABILITY, TIMELINESS, TITLE OR WORKMANLIKE EFFORT, ALL OF WHICH ARE HEREBY DISCLAIMED BY RAANGE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR THE SELECTION OF SERVICES, AND THE USE OF SERVICES, TO ACHIEVE INTENDED RESULTS.
9.2 RAANGE SERVICE DATA DISCLAIMER: CUSTOMER IS SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF RAANGE SERVICE DATA. CUSTOMER USES RAANGE SERVICE DATA AT CUSTOMER’S OWN RISK. CUSTOMER ACKNOWLEDGES THAT RAANGE SERVICE DATA MIGHT INCLUDE INFORMATION, COLLECTED BY RAANGE FROM OTHER PERSONS, THAT IS FALSE, FRAUDULENT OR INACCURATE. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR, AND BEARS ALL RISKS AND LIABILITIES ASSOCIATED WITH, RAANGE SERVICE DATA, INCLUDING THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, SUITABILITY AND TIMELINESS OF RAANGE SERVICE DATA. RAANGE IS NOT RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OF OR FAILURE TO STORE ANY RAANGE SERVICE DATA. RAANGE MAKES NO REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, REGARDING RAANGE SERVICE DATA, AND DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY FOR RAANGE SERVICE DATA TO THE FULLEST EXTENT PERMITTED BY LAW.
9.3 SECURITY DISCLAIMER: SECURITY MEASURES USED BY RAANGE MIGHT NOT PROTECT A RAANGE SYSTEM OR DATA STORED IN THE SYSTEM AGAINST UNAUTHORIZED ACCESS, USE OR DISCLOSURE. RAANGE IS NOT RESPONSIBLE OR LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR USE, ALTERATION, THEFT OR DESTRUCTION OF, A RAANGE SYSTEM OR ANY DATA STORED IN THE SYSTEM, WHETHER THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD. RAANGE IS NOT REQUIRED TO VERIFY THE ACTUAL IDENTITY OR AUTHORITY OF ANY PERSON USING CREDENTIALS, AND RAANGE MAY ACT UPON ANY COMMUNICATION THAT IS GIVEN WITH THE USE OF CREDENTIALS.
9.4 TECHNOLOGY DISCLAIMER: SERVICES MIGHT BE AFFECTED BY FACTORS BEYOND RAANGE’S CONTROL, AND MIGHT NOT BE CONTINUOUS, UNINTERRUPTED OR SECURE. SERVICES MIGHT MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND RAANGE IS NOT RESPONSIBLE OR LIABLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM THOSE PROBLEMS.
9.5 LEGAL COMPLIANCE DISCLAIMER: SERVICES DO NOT INCLUDE LEGAL ADVICE. CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ENSURING THAT CUSTOMER’S USE OF SERVICES AND RAANGE SERVICE DATA COMPLIES WITH APPLICABLE LAW, INCLUDING TCPA AND OTHER LAWS THAT REGULATE COMMERCIAL ELECTRONIC MESSAGES AND TELEMARKETING ACTIVITIES.
9.6 INHERENT RISKS: CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN CUSTOMER’S USE OF SERVICES, INCLUDING RISKS THAT INDIVIDUALS MIGHT GIVE FALSE OR INACCURATE INFORMATION TO RAANGE OR DISHONESTLY DENY GIVING CONSENTS, AUTHORIZATIONS OR OTHER DATA AND INFORMATION TO RAANGE FOR USE BY OR ON BEHALF OF CUSTOMER. AS BETWEEN THE PARTIES, CUSTOMER IS FULLY RESPONSIBLE AND LIABLE FOR ALL CLAIMS, LIABILITIES, LOSS AND DAMAGE TO CUSTOMER, RAANGE AND OTHER PERSONS ARISING FROM, CONNECTED WITH OR RELATING TO CLAIMS OR DISPUTES BY INDIVIDUALS REGARDING CONSENTS, AUTHORIZATIONS OR OTHER DATA AND INFORMATION THOSE INDIVIDUALS PROVIDE, OR DISPUTE HAVING PROVIDED, TO RAANGE FOR USE BY OR ON BEHALF OF CUSTOMER.
10. Liability Exclusions/Limitations
10.1 EXCLUSIONS/LIMITATIONS: NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
(a) EXCLUSIONS: RAANGE GROUP’S LIABILITY (IF ANY) TO CUSTOMER GROUP ARISING FROM, CONNECTED WITH OR RELATING TO THIS AGREEMENT OR TO SERVICES, DOCUMENTATION OR RAANGE SERVICES DATA IS LIMITED TO DIRECT DAMAGES SUFFERED BY CUSTOMER ONLY, AND IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL RAANGE GROUP BE LIABLE TO CUSTOMER GROUP OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE, OR ANY LOSS OF DATA, LOSS OF INFORMATION, LOSS OF BUSINESS, LOSS OF MARKETS, LOSS OF SAVINGS, LOSS OF INCOME, LOSS OF PROFITS, LOSS OF USE, LOSS OF PRODUCTION, OR LOSS OF GOODWILL, ANTICIPATED OR OTHERWISE;
(b) LIMITATIONS: IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL RAANGE GROUP’S TOTAL AGGREGATE LIABILITY TO CUSTOMER GROUP ARISING FROM, CONNECTED WITH OR RELATING TO THIS AGREEMENT OR TO SERVICES, DOCUMENTATION OR RAANGE SERVICES DATA EVER EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO RAANGE FOR THE RELEVANT RAANGE SERVICE DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE;
(c) APPLICATION: THIS SECTION 10.1 APPLIES TO LIABILITY UNDER ANY THEORY (INCLUDING CONTRACT, TORT, STRICT LIABILITY AND STATUTORY LIABILITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING (INCLUDING FUNDAMENTAL BREACH OR GROSS NEGLIGENCE) BY RAANGE GROUP OR ANY PERSON FOR WHOM RAANGE IS RESPONSIBLE, EVEN IF OTHER REMEDIES ARE NOT AVAILABLE OR DO NOT ADEQUATELY COMPENSATE FOR THE LOSS OR DAMAGE, EVEN IF RAANGE GROUP KNOWS OR OUGHT TO HAVE KNOWN OF THE POSSIBILITY OF THE POTENTIAL LOSS OR DAMAGE BEING INCURRED, AND REGARDLESS OF WHETHER OR NOT THE LOSS OR DAMAGE WAS FORESEEABLE; AND
(d) DEFINITIONS: IN THIS SECTION 10.1, “RAANGE GROUP” MEANS RAANGE AND RAANGE’S AFFILIATES AND THEIR RESPECTIVE SUPPLIERS, SERVICE PROVIDERS, LICENSORS, DISTRIBUTORS, AND REPRESENTATIVES, JOINTLY AND SEVERALLY; AND “CUSTOMER GROUP” MEANS CUSTOMER AND CUSTOMER’S AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES (INCLUDING AUTHORIZED USERS), JOINTLY AND SEVERALLY.
10.2 ACKNOWLEDGEMENT: THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT (INCLUDING IN SECTIONS 9 AND 10) IS AN ESSENTIAL PART OF THE BARGAIN BETWEEN THE PARTIES, A CONTROLLING FACTOR IN SETTING THE FEES PAYABLE BY CUSTOMER FOR SERVICES, AND AN INDUCEMENT TO THE PARTIES TO ENTER INTO THIS AGREEMENT.
11.1 Term and Termination of Agreement: Unless a Purchasing Document expressly states otherwise, this Agreement is effective as of the date of the first Purchasing Document and will continue in full force and effect until terminated in accordance with this Agreement. Unless the Parties expressly agree in writing otherwise: (a) if all Service Schedules have been fully performed or have expired or been terminated in accordance with this Agreement, then either Party may terminate this Agreement at any time for the Party’s sole convenience effective immediately upon notice of termination to the other Party; and (b) this Agreement will terminate automatically (without notice to any Party) ninety (90) days after the day on which the last Service Schedule has been fully performed or has expired or been terminated.
11.2 Termination of Service:
(a) General: Either Party may terminate a Service for cause effective immediately upon delivery of a termination notice to the other Party if the other Party breaches the provisions of this Agreement (including the Service Schedule for the Service) relating to the Service and has not remedied the breach within thirty (30) days after receipt of a default notice from the non-breaching Party identifying the breach and stating the non-breaching Party’s intention to terminate the Service if the breach is not remedied within a thirty (30) day cure period, provided that the termination notice is delivered no later than fifteen (15) days after the end of the cure period, and provided that if the non-breaching Party does not give timely notice of termination to the breaching Party, and if the breach is continuing, the non-breaching Party may give a further default notice in respect of the breach and the provisions of this section 11.2 will apply in respect of that further default notice. For greater certainty, the expiration or termination of a Service will not result in the termination of any other Service or this Agreement as a whole.
(b) Cancellation: Raange in its discretion and for its sole convenience may terminate a Raange Service at any time upon thirty (30) days’ notice of termination to Customer if Raange in its discretion decides to cancel the Raange Service for all customers.
11.3 Consequences of Termination:
(a) Service: If a Service is terminated for any reason: (i) each Party will remain responsible and liable for all obligations and liabilities relating to the Service arising prior to the termination of the Service; and (ii) Customer will promptly pay all outstanding fees and applicable Taxes for the Service provided or performed before the termination date.
(b) Agreement: If this Agreement is terminated for any reason: (i) Raange will no longer be obligated to perform or provide any Service; (ii) each Party will remain responsible and liable for all obligations and liabilities arising prior to the termination of this Agreement; and (iii) Customer will promptly pay all outstanding fees and applicable Taxes for Services performed or provided prior to the termination date.
11.4 Suspension of Services: If Customer fails to make a payment when due under this Agreement, then Raange may suspend the provision of Services to Customer until the payment has been made and the suspension will not be a breach of this Agreement by Raange, entitle Customer to a refund or suspension of fee payment obligations, or give rise to any liability by Raange to Customer or any other person.
11.5 Survival: Notwithstanding any other provision of this Agreement, sections 2.4, 2.7, 2.8, 4.6, 5.1, 5.2, 5.4(b), 5.6, 6, 7, 8.7, 8.8, 8.9, 9, 10, 11.3, 11.5 and 12, and all other provisions necessary to the interpretation or enforcement of those sections, will survive the expiration or termination of this Agreement and will remain in full force and effect and be binding upon the Parties as applicable.
12.1 Publicity: Raange may include Customer’s name in any published list or directory of Raange customers.
12.2 Notices: Unless this Agreement expressly states otherwise: (a) Raange may deliver Purchasing Documents, invoices and notices to Customer by email, facsimile or delivery to Customer’s addresses specified in a Purchasing Document or on record in Customer’s file with Raange; and (b) Customer will give all notices to Raange under this Agreement in writing delivered to Raange by email to legalnotices@Raange.com.
12.3 Governing Law: This Agreement and the subject matter of this Agreement and all related matters will be governed by, and construed in accordance with, the laws of the Province of Ontario and the laws of Canada applicable in Ontario, excluding any laws that implement the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Commercial Code or the Uniform Computer Information Transactions Act, and excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws.
12.4 Disputes: All disputes, controversies and claims arising under, out of, in connection with, or in relation to this Agreement or any related matter will be referred to and finally resolved by binding arbitration under the International Arbitration Rules of The American Arbitration Association (AAA) (the “AAA”) by a single arbitrator appointed in accordance with those Rules, to the extent that the Rules do not conflict with this section 12.4. If the AAA is not operative, the arbitration will proceed ad hoc and be governed by the Arbitration Act, 1991 (Ontario). The place of arbitration will be Toronto, Ontario and the language used in the arbitration will be the English language. Each Party hereby irrevocably submits and attorns to the original and exclusive jurisdiction of Ontario Superior Court of Justice sitting in Toronto, Ontario in respect of any matter that is not properly subject to arbitration pursuant to this section 12.4, and each Party irrevocably waives all rights to trial by jury.
12.5 Assignment: This Agreement is binding upon and will ensure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign this Agreement without the express prior written consent of the other Party, except that Raange may (without Customer’s consent) assign this Agreement and Raange’s rights, duties, obligations and interests in this Agreement in any merger, consolidation, or reorganization or any acquisition or sale of all or substantially all of Raange’s assets relating to Raange Services.
12.6 Force Majeure: Notwithstanding any other provision of this Agreement, neither Party will be liable for any delay in performing or failure to perform any of the Party’s obligations, excluding payment obligations, under this Agreement to the extent performance is delayed or prevented due to a cause that is beyond the Party’s reasonable control (a “Force Majeure Event”). Any delay or failure of that kind will be deemed not a breach of this Agreement by the defaulting Party, and the time for the defaulting Party’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
12.7 Interpretation: In this Agreement: (a) a reference to “this Agreement” refers to this Agreement as a whole (including all Contract Documents), and not just to the particular provision in which those words appear; (b) headings are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any provision of this Agreement; (c) reference in a Contract Document to a section by number only is a reference to the appropriate section in the Contract Document in which the reference is made; (d) words importing the singular number only include the plural and vice versa; (e) words importing a gender include both genders; (f) reference to a day, week, month, quarter or year, means a calendar day, week, month, quarter or year, unless expressly stated otherwise; (g) reference to currency is to the lawful money of Canada, unless expressly stated otherwise; (h) “person” includes an individual, corporation, partnership, joint venture, association, trust, unincorporated organization, society and any other legal entity; (i) “including” or “includes” means including or includes (as applicable) without limitation or restriction; (j) “discretion” or “option” mean a person’s sole, absolute and unfettered discretion or option; and (k) “law” includes common law, equity, statutes and regulations, and reference to a specific law includes all regulations made under the law and all amendments to, or replacements of, the law or any regulation in force from time to time, as applicable.
12.8 Miscellaneous: The Parties are non-exclusive, independent contracting parties, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the Parties. If a provision of this Agreement is held by a court or arbitrator to be invalid or unenforceable for any reason, then the provision will be deemed severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of the severance this Agreement would fail in its essential purpose. If the consent or approval of a Party is required under this Agreement, then the Party in its discretion may withhold the consent or approval unless this Agreement expressly specifies otherwise. No consent or waiver by Raange to or of a breach of this Agreement by Customer will be effective unless in writing and signed by Raange. Except as expressly set forth in this Agreement, the Parties’ respective rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies to which they may be entitled under this Agreement or at law, and the Parties are entitled to pursue all of their respective rights and remedies concurrently, consecutively and alternatively. The Parties have expressly requested and required that this Agreement and all related documents be written in the English language. Les parties conviennent et exigent expressément que ce Contrat et tous les documents qui s’y rapportent soient rédigés en Anglais. If a Contract Document requires the signature of both Parties, then the Contract Document may be signed and delivered (including by facsimile transmission or by email in PDF or similar secure format) in counterparts, and each signed and delivered counterpart will be deemed an original, and both counterparts will together constitute one and the same document. This Agreement may not be amended except by a written document that expressly states that it is an amendment to this Agreement and that is signed by both Parties or their respective successors or permitted assigns.
12.9 Entire Agreement: This Agreement sets forth the complete agreement between the Parties with respect to the subject matter of this Agreement, and supersedes all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, with respect to the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties other than as expressly set forth in this Agreement. Purchase orders and other documents issued by Customer and accepted by Raange in connection with this Agreement are for administrative convenience only, and the terms and conditions contained in those documents are of no force or effect and do not in any way amend the terms and conditions of this Agreement.