Lambda Subscription Agreement
Last Amendment Date: October 1, 2020
This Subscription Agreement (the “Agreement”) describes your rights and responsibilities when using the Service (defined below). If you are a Customer (defined below), the Agreement will apply to your access and use of the Service, whether that access and use is by you or your affiliates, employees, contractors and others that you permit to use the Service.
This Agreement is a contract between the Customer and Lambda Solutions Inc. (“Lambda”, “we”, “us” and “our”). This Agreement incorporates certain terms specified in a formal quote you have received from us (the “Signed Quote”), including the length of your Subscription period, fees, and the specific Service(s) you will receive from Lambda. “Customer” is the individual, company, organization or other legal entity described in the Signed Quote (also referred to as “you” and “your”).
By accepting the Signed Quote, and/or accessing or using of the Services, and/or allowing any Active User to access and use the Services, and/or allowing Enrollment, and/or allowing Item Purchase, you agree to be bound by this Agreement. If you enter into this Agreement on behalf of a company, organization or other legal entity, you represent that you have the authority to bind that entity to the Agreement.
1. Our Service
1.1 Using our Services: provided you comply with the Agreement, we will provide you with a non-exclusive, non-transferrable, revocable right during the Subscription Term (as defined in clause 7.1 below) to access and use the software as a service application(s) described in your Signed Quote (“Service”). You are responsible for ensuring that all individuals that you authorize to use the Service (“Active Users”) comply with the Agreement as well as the terms of the GNU Public Licence, described in further detail below.
1.3 GNU Public Licence: many of Lambda’s Services incorporate and deliver software which are licensed from third parties and subject to third party terms and conditions, including without limitation the GNU General Public Licence, version 3, dated June 29, 2007, as published by the Free Software Foundation and amended from time to time. A copy of this Licence can be found at the following link: https://www.gnu.org/licenses/gpl-3.0.en.html
1.4 Changes to the Services: We may update the Services from time to time. We will not materially reduce the level of performance, security or availability of the Services without notifying you. Any updates to the Service are subject to this Agreement.
2. Your Responsibilities
2.1 Your Subscription: Your access and use of the Services (your “Subscription”) is restricted to the specified number of Active Users permitted under your Signed Quote. Each Active User will be identified using unique login information, including a username and password, which may only be used by one individual. You are solely responsible for maintaining the confidentiality of login-in and password information. Unless you notify us of any unauthorized use or suspicious activity in your account for the Service, you are responsible for all activities that occur under your account and those of your Active Users. We will not be liable for any loss or damages that you may incur as a result of someone else using your or an Active User’s username, password or account, with or without your knowledge. You are solely responsible for ensuring that your use of the Service, including to store and transmit Your Data, complies with all applicable laws and regulations.
2.2 Your use of the Services: You agree not to:
(a) make the Services available to any third party, other than Active Users. For instance, you are not permitted to license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the Services except as permitted under this Subscription Agreement;
(b) use the Services to Process data on behalf of any third party other than your Active Users;
(c) modify, adapt or hack the Services or otherwise attempt to gain or gain unauthorized access to the Service or related systems or networks;
(d) use the Services in any unlawful manner, including in violation of any applicable export laws and regulations;
(e) use the Services to send unsolicited communications, junk mail, spam or other forms of duplicative or unsolicited messages;
(f) use the Services to store or transmit any content that infringes, violates or misappropriates any person’s intellectual property rights;
(g) use the Services in any manner that interferes with or disrupts the integrity or performance of the Service and its components;
(h) attempt to decipher, decompile, reverse engineer, disassemble, reproduce, copy or otherwise access or discover the source code or underlying program of any software making up the Services;
(i) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory or any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”);
(j) establish a link to our websites in such a way as to suggest any form of association, approval or endorsement on our part where none exists;
(k) use the Services for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages or sending electronic communications (including e-mail) in violation of applicable law; or
(l) use or try to use the Services in violation of this Agreement.
2.3 Loss of Data: You will be responsible for any loss of data or attempted or actual access or use of the Service through any account associated with your Subscription in violation of this Agreement.
2.4 Unauthorized Use: If we inform you that a specified activity or purpose is prohibited with respect to the Service, you will immediately cease using the Service for this activity or purpose.
2.5 Violation by Active Users: In respect of the Services, if we believe that there is a violation of this Subscription Agreement, the User Terms, or any of our other policies that can be remedied by Customer’s removal of certain Customer Data or taking other action, including revoking access to certain Active Users, we will, in most cases, ask the Customer to take action rather than intervene. You agree to make reasonable efforts to prevent such violations by Active Users in response to such a request.
2.6 We may directly step in and take what we determine to be appropriate action (including disabling your account) if you do not take appropriate action to prevent the violations by Active Users discussed in clause 2.5 above, or we believe there is a credible risk of harm to us, the Services or any third parties.
3. Ownership Rights and Restrictions
3.1 Ownership: All right, title and interest in and to the Services, derivatives of the Services and anything developed and delivered by or on behalf of us will belong to and remain exclusively with us and our licensors. All rights not expressly provided to you under this Subscription Agreement belong to us or our licensors. You, your Active Users or your licensors retain all ownership and other intellectual property rights in and to Your Data.
3.2 Right to Use Your Data: You grant to us a worldwide, non-exclusive, limited right and license to host, use, Process, display, export and transmit Your Data: (a) to provide the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted by you or your Active Users in writing. You are solely responsible for the quality, integrity, legality, reliability and appropriateness of Your Data and for obtaining all rights, authorizations and consents required by us to provide the Services to you and otherwise Process Your Data, including rights in and to your data from your Active Users and others.
3.3 Feedback and Suggestions: If you send us any feedback or suggestions regarding the Services, you grant, or will obtain for us, an unlimited, worldwide, irrevocable, perpetual, sub-licensable, transferrable, royalty-free license to use this feedback or suggestions for any purpose without any obligation to you or your Active Users.
4. Other Services
4.1 Third parties may develop applications and software that integrate with the Services or complement your use of the Services (“Third Party Services”). These Third Party Services are not part of the Services and may be governed by their own terms and privacy policies. By using Third Party Services, you acknowledge and agree that: (a) we are not responsible for your use of these Third Party Services; (b) we do not provide any warranties or support for Third Party Services; and (c) we are not liable for any damage or loss caused or alleged to be caused by or related to your access or use of any such Third Party Services, or your reliance on the privacy practices, data security processes or other policies of such Third Party Services.
4.2 We may provide additional services to You as specified in a written statement of work referencing this Agreement.
5. Restricted Service Access
5.1 Service Outages: You may not be able to access or use the Services: (a) during planned downtime to allow for repairs, maintenance or the introduction of new functions or services (“Planned Downtime”); or (b) during any unavailability caused by circumstances beyond our reasonable control.
5.2 Technical Support and Keeping the Services Available: We will provide You with technical support services in accordance with Our Technical Support Policy, as updated from time to time. We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding Planned Downtime.
6. Subscription Fees and Payment
6.1 Subscription Fees: All fees associated with your Subscription to the Services (“Subscription Fees”) are due in full and payable in accordance with clause 6.2. Unless specified otherwise in your Signed Quote, the Subscription Fees are payable in full until you terminate your Subscription in accordance with Section 7. Except as expressly provided in this Agreement, all Subscription Fees are non-refundable and your Subscription to the Service is non-cancellable during your current Subscription Term.
6.2 Payment methods: Subscription Fees and any other fees and charges relating to your Subscription, are accepted by the payment methods specified in your Signed Quote or applicable invoice. Payment is due immediately upon receipt of invoice unless otherwise stated in your Signed Quote. You are subject to any applicable terms, conditions, restrictions and other requirements of any payment provider related to your chosen payment method and are solely responsible for any transaction fees, including credit card and Paypal processing costs, insufficient fund charges or any other fee or charge that is assessed by a payment provider in connection with your use of such payment method. Lambda applies an additional charge of 4% to all fee payments made by Visa credit cards.
6.3 Late Payments/Non-payment of Subscription Fees: We will notify you if we do not receive payment of the Subscription Fees by the due date. We must receive payments within 30 days from the invoice date. If we do not receive payment within that time period, in addition to other remedies available under law, we may: (a) charge an interest for late payment at 1.5% simple interest per month, or 18% per annum; (b) suspend your access to and use of the Service until we receive your payment; and/or (c) terminate your Subscription to the Service.
6.4 Applicable Taxes: The Subscription Fees and other amounts required to be paid under this Agreement do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are solely responsible and liable for paying the Taxes that would be levied against you by government authorities. We will invoice you for Taxes if we believe we have a legal obligation to do so and you agree to pay Taxes invoiced to you. Should any payment for the Service be subject to withholding tax by any government authority, you will promptly reimburse us for the full amount of such withholding tax. This provision does not apply to our income or franchise taxes.
6.5 Fee Adjustments: Lambda may, on an annual basis, increase the Subscription Fees by the greater of (a) 10%, or (b) the percentage increase in the annual average, not seasonally adjusted, Consumer Price Index for All Items as maintained by Statistics Canada. Prices are also subject to change on renewal, upon written notice to the Customer provided by the end of the current Initial Term or Subscription Term, as applicable. Unless otherwise agreed in writing, your continued use of the services for 15 days into the Subscription Term constitutes acceptance of any fee adjustment.
7. Term, Suspension and Termination
7.1 Subscription Term and Renewal: Your Subscription to the Service is for the period described in your Signed Quote (the “Initial Term”) and will, subject to clause 7.2, thereafter continued on an annual basis (“Subscription Term”).
7.2 Automatic Extension of the Term: On the date that is 30 days prior to the last day of the Term (the “Extension Date”), the Term will automatically extend for a period equal to the length of the Initial Term or one year, whichever is longer, unless either party, on or before the Extension Date, notifies the other in writing that the Term shall not so extend. In the event that the Term is extended under this paragraph: (1) Licensee shall remain subscribed during such period of extension to the Services to which it was subscribed as of the Extension Date, and (2) the Subscription Fees to be paid to Lambda for such Services during such period of extension shall be equal to the annualized amount of the Subscription Fee applicable to all Services to which Customer was subscribed as of the Extension Date, plus 10% of such fee, plus any applied discount, multiplied by the length of the term in years. Subscription Fees for the period of extension hereunder shall be due upon extension of the Term and shall be payable as invoiced. Lambda will invoice Subscription Fees for any period of extension on an annual basis or in a manner substantially consistent with the payment schedule that applied to the Agreement as of the Extension Date, in Lambda’s discretion.
7.3 Suspension and Termination by Us: If payment of fees is more than thirty (30) days overdue, we have the option to terminate this Agreement upon notice in writing to you, unless you have disputed these payments in good faith. In addition to suspension for late or non-payment of Subscription Fees, we may immediately suspend your access to and use of the Service if you or any of your Active Users violate this Agreement or the User Terms. We will notify you of any such activities and, at our sole discretion, may provide you with a period of 20 days to cure or cease such activities. If we provide with a cure period and you do not cure or cease such activities within this period, or if we believe that the breach of this Agreement or the User Terms cannot be cured, your account and access to the Service will be terminated. We may terminate your Subscription immediately on notice to you if we reasonably believe that the Service is being used by you or your Active Users in violation of applicable law.
7.4 Termination by You for Convenience: Following the Initial Term, you may terminate this Agreement for any or no reason upon 90 days written notice.
7.5 Termination by You for Cause: You may terminate your Subscription if we materially breach this Agreement and have not cured that breach within 30 days after you have provided written notice to us of the breach.
7.6 Effect of Termination: Following expiry or termination of this Agreement, the following provisions will apply:
(a) Charges: If you terminate your Subscription prior to the end of your current Subscription Term or we terminate your Subscription under clause 7.2, in addition to other amounts you may owe us, you must immediately pay any then-unpaid Subscription Fees for the remainder of your current Subscription Term, unless waived by us in writing. If you terminate your Subscription for cause, our sole and exclusive obligation will be to promptly refund that portion of the Subscription Fee actually paid by you that is proportional to the percentage of the Subscription Term remaining at the time termination is effective, unless otherwise provided in this Agreement.
(b) Data Export: We strongly recommend that you export all Your Data before you terminate your Subscription or the subscription expires. Following termination of your Subscription either by you or us, unless otherwise specified in this Agreement, Your Data will be retained for a period of 30 days from such termination within which you may contact us to export Your Data (“Data Retention Period”). After the Data Retention Period, we will delete all Your Data in the normal course of operation. Your Data cannot be recovered once it is deleted.
7.7 Survival: The respective rights and obligations of you and us under the provisions of Sections 2, 3, 6, 7, 8, 10, 11, 12, 12.4 and 13 will survive termination of this Agreement.
8. Confidentiality, Privacy and Security
8.1 Account Credentials: If you choose, or are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat that information as confidential. We reserve the right to disable any user identification code, account or password, whether chosen by you or allocated by us, at any time if, in our reasonable opinion, you have failed to comply with any of the provisions of this Agreement.
8.2 Confidential Information: As used in this Agreement, “Confidential Information” means all information disclosed, accessed or obtained by one party (“receiving party”) by or on behalf of the other party (“disclosing party”), whether verbally, electronically or otherwise and either before or after the effective date of this Agreement, which is: (a) identified by the disclosing party as confidential at the time of disclosure; or (b) that a reasonable person would consider confidential due to its nature and circumstances of disclosure, and includes any information generated by the receiving party to the extent that it contains, reflects, or is derived from Confidential Information. Our Confidential Information includes, without limitation, the Service. Confidential Information does not include information which the receiving party can document: (i) was in the possession of or known by it without an obligation of confidentiality prior to receipt from the disclosing party; (ii) is or becomes general public knowledge through no fault or acts of the receiving party; (iii) is or becomes lawfully available to the receiving party from a third party without an obligation of confidentiality; or (iv) is independently developed by the receiving party without use of any Confidential Information.
8.3 Protection of Confidential Information: Except as expressly permitted in this Agreement, Confidential Information of the disclosing party may not be copied, reproduced, or distributed by the receiving party, and the receiving party will not sell, lease, license, assign, transfer, or disclose the Confidential Information of the disclosing party to any third party. The receiving party will protect Confidential Information of the disclosing party by using the same degree of care (but no less than a reasonable degree of care) as it uses to safeguard its own confidential or proprietary information of a similar nature from unauthorized use, disclosure, or dissemination, including, without limitation, securing all servers, drives or media on which the Service is installed or maintained. The receiving party agrees to restrict access to Confidential Information of the disclosing party to only its employees, agents or contractors who: (a) require such access in the course of their assigned duties and responsibilities; (b) have been informed of the receiving party’s obligations of confidence; and (c) have agreed in writing to preserve the confidentiality of such information under terms and conditions no less restrictive than those set out in this Agreement. The receiving party will enforce such obligations unless otherwise authorized in writing by the disclosing party. Each party agrees to immediately notify the other party of any authorized access to or disclosure of Confidential Information.
8.4 Permitted Disclosure: In the event that any Confidential Information of the disclosing party is required to be disclosed pursuant to any bona fide law, regulation or court order, the receiving party will give the disclosing party immediate notice of such obligation and will use commercially reasonable efforts to provide the disclosing party with an opportunity to take such steps as it desires to challenge or contest such disclosure or seek a protective order. Thereafter, the receiving party may disclose the Confidential Information, but only to the extent required by applicable law and subject to any applicable protective order.
8.5 Security of Your Data: We use appropriate physical, technological and organizational measures to protect Your Data. The measures we use are designed to provide a level of security appropriate to the risk of Processing Your Data.
8.7 Consent to Data Use: By accepting this Agreement, you acknowledge and agree that we may collect and use technical data and related information, including technical information about your device, system, application software and peripherals, which is gathered periodically by us to provide you with updates, product support and other services relating to the Service. We may use this information, as long as it is in a form that does not personally identify you or your Active Users, to improve the Service and other products or to provide services or technologies to you.
9. Communications From Us
10. Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, INCLUDING ANY WEBSITES THAT MAKE THE SERVICE AVAILABLE AND ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. WE EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, WARRANTIES OR OTHER TERMS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE OR ARISING BY COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR PERFORMANCE.
YOU ACKNOWLEDGE THAT WE DO NOT REPRESENT OR WARRANT THAT THE SERVICE OR ASSOCIATED WEBSITES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE AND YOU FURTHER ACKNOWLEDGE THAT WE DO NOT REPRESENT OR WARRANT THAT THE ACCESS TO THE SERVICE, WHICH IS PROVIDED OVER THE INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE SERVICE AND THE INFORMATION PROVIDED THROUGH OR GENERATED BY THE SERVICE IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. WE ASSUME NO RESPONSIBILITY, AND ARE NOT LIABLE FOR, ANY DAMAGE TO YOUR COMPUTER EQUIPMENT, DATA OR OTHER PROPERTY ON ACCOUNT OF YOUR INSTALLATION OF, ACCESS TO, USE OF OR BROWSING ON OUR SERVICES OR YOUR DOWNLOADING OF ANY SOFTWARE OR MATERIAL, OR INABILITY TO DO ANY OF THE FOREGOING.
11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO ANY PERSON UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY), BREACH OF STATUTORY DUTY OR OTHERWISE, FOR THE FOLLOWING TYPES OF LOSS OR DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED AS TO THE POSSIBILITY OF, OR COULD HAVE FORESEEN, SUCH LOSS OR DAMAGES IN ADVANCE: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES; AND (B) WHETHER DIRECT OR INDIRECT, LOSS OF REVENUE, INCOME, PROFIT, SAVINGS OR SHARE VALUE, LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEMS, PROGRAMS, NETWORKS OR HARDWARE (OR THE RECOVERY OF SUCH) OR LOSS OF GOODWILL. WE WILL NOT BE LIABLE TO YOU FOR DAMAGES FOR ANY CAUSE RELATED TO OR ARISING OUT OR REPUTATION.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, FOR ANY CAUSES OF ACTION, LOSSES AND DAMAGES ARISING OUT OF OR RELATING TO THE SERVICE OR THIS AGREEMENT, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES AND CHARGES ACTUALLY PAID BY YOU TO USE UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT, TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICE IN ACCORDANCE WITH THIS AGREEMENT, WE HAVE LIMITED OUR POTENTIAL LIABILITY AND ALLOCATED RISKS BASED ON THE SUBSCRIPTION FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET OUT IN THIS AGREEMENT.
IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
12. 1 Indemnification by Us: We will defend any claim against you that the Service infringes any Canadian patent, trademark, copyright or other intellectual property right of a third party and will indemnify you against any damages finally awarded against you by a court of final appeal, or agreed in a settlement by us and attributable to such claim, provided that you: (a) give us prompt written notice of any such claim; (b) provide reasonable assistance and information to enable us to defend the claim; (c) allow us to control defence of the claim; and (d) have not compromised or settled the claim. If the Service is found to infringe a third party’s rights, or if we determine in our sole discretion that it is likely to be found to infringe, then we may, at our option: (i) obtain the right for you to continue to use the Service; (ii) modify the Service to make it non-infringing or replace it with a functionally equivalent substitute Service, in which case you will stop using the infringing version of the Services; or (iii) terminate each party’s rights and obligations under this Agreement as it relates to the infringing Service (or this Agreement in its entirety) and refund to you a pro-rata portion of the Subscription Fees paid to us by you under this Agreement.
12. 2 Exclusions from Our Indemnity: Our indemnification obligations under clause 12.1 will not apply if the infringement is caused in whole or in part by: (a) use of the Service in a manner not in accordance with this Agreement; (b) modifications or enhancements to the Service not made by us or on our behalf, including the use of any API; (c) the combination, operation or use the Service with products, software or devices not provided by us where the Service would not by itself be infringing; (d) compliance with designs, data, instructions or specifications provided by you; (e) Your Data or Other Services; or (f) use of an allegedly infringing version of the Service if the alleged infringement could be avoided by the use of a different version of the Service made available to you.
12. 3 Sole Remedy: Clauses 12.1 and 12.2 states our entire liability with respect to infringement of patents, copyrights, trademarks or other intellectual property rights. Our obligations under those clauses specifically exclude any obligations with respect to any patent, copyright, trademark or other intellectual property right outside of Canada.
12.4 Indemnification by You: You will indemnify and hold us harmless against any claim brought by a third party against us or our affiliates, and our respective employees, officers, directors and agents, arising from or related to use of the Service by you or your Active Users or matters which you have expressly agreed to be responsible under this Agreement, provided that we promptly notify you of the threat or notice of such a claim.
13.1 Independent Contractors: Each party to this Agreement is and will at all times remain an independent contractor to the other party. At no time will either party be deemed to be the agent or employee of the other party, and no joint venture, partnership, agency or other similar relationship will be created or implied by virtue of this Agreement.
13.2 Severability: If any provision in this Agreement is at any time unenforceable or invalid for any reason it will be severable from the remainder of this Agreement. In the event of such a severance, this Agreement will be construed and will continue in full force and effect as if this Agreement had been executed without the invalid or unenforceable provision.
13.3 Notice: All notices to be provided by us to you under these User Terms may be delivered in writing via: (a) email (b) mail (registered or certified, postage prepaid with receipt requested); (c) courier; or (d) personally. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, 2 business days after being deposited in the mail or dispatched by courier.
13.4 Force Majeure: If the performance of this Agreement or any obligation under this Agreement (except payment of Subscription Fees) is prevented, restricted or interfered with by reason of fire or other casualty or accident; strikes or labor disputes; inability to procure raw materials, power or supplies; war or other violence; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental agency or intergovernmental body; or any other act or condition whatsoever beyond the reasonable control of the party charged with performance, such party, upon giving notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference for the duration of the interfering event.
13.5 Waiver: No waiver by any party of any of these provisions is effective unless explicitly set out in writing and signed by the waiving party. No waiver by any party will operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different nature, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise of that or any other right, remedy, power or privilege.
13.7 Revisions: We may amend this Agreement from time to time, in which case the updated Agreement will supersede prior versions. If we make a change to this Agreement, the updated Agreement will be posted on our website or otherwise made available through the Service. Please check the Subscription Agreement posted on our website from time to time to take notice of any changes we made, as they will be binding on you. Your continued access and use of the Service following the effective date of any such updated Agreement may be relied upon by us as your acceptance of any such amendment.
13.8 Governing Law: This Agreement, your use of the Service and all disputes arising from or relating to the Agreement or Services will be governed exclusively by the laws of the Province of British Columbia and the federal laws of Canada applicable in British Columbia without regard to conflict of laws principles. You further agree that, despite being available from a variety of jurisdictions, the Service will be deemed solely based in the Province of British Columbia, Canada; and the Service will be deemed to be passive in nature and not giving rise to personal jurisdiction over us in jurisdictions other than the Province of British Columbia. The parties irrevocably submit to the exclusive jurisdiction of the courts of the Province of British Columbia (Vancouver registry) for any actions or proceedings arising out of or relating to the enforcement of this Agreement and use of the Service. However, you agree that nothing in this Agreement precludes our application for injunctive remedies or other urgent legal relief in any jurisdiction.
13.9 Publicity; References: With your prior written consent, not to be unreasonably withheld: (a) we may list you as our customer in marketing and promotional materials, our web site and in press releases, and may use your logos in connection with those purposes, provided that such use at all times complies with your trademark/logo guidelines, and (b) you will reasonably cooperate in other our marketing efforts, including participation by you in a joint press release within 4 weeks following installation of the Service.
13.10 Assignability: We may assign our rights or obligations under this Agreement, upon giving notice to you. You may only assign your rights or obligations under this Agreement with our prior written consent. Any change in control or of more than 50% shareholding in you (if you are a company) shall be deemed an assignment.
13.11 Successors and Assigns: This Agreement will ensure to the benefit of, and be binding upon, the parties and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns.
13.12 Definitions: Capitalized terms that are not otherwise defined elsewhere in this Agreement have the following meanings:
"Applicable Data Protection Law" means the privacy and data protection laws that are applicable in the territory where you are established.
"Active User" means any unique user who has logged into a Lambda service at least once in 12 month period of their contract.
“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service provided or made available by us to you or your Users through the Service or otherwise.
"Active Enrollment" means any unique user who has signed on into a unique course at least once. An Active Enrollment is valid for a period of 12 months from the first sign on and within the Term of Customer’s Lambda Subscription Agreement.
"Item Purchase" means any item purchased from Customer’s site, but does not include Enrollment.
“Personal Information” means information or data relating to an identifiable individual, such as name, address, date of birth, contact information (including home telephone number and personal e-mail address), employment status, and income.
“Processing” or "Process" means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
“Your Data” means all software, data, Personal Information, text, images, audio and other content and material provided by you or your Active Users that is stored in, submitted to or run on or through the Service.