END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement”) governs the access and use by you (either as an individual or Educational Institution, hereinafter, “User”) of the 3-D imaging software-as-a-service solution referred to as “EasyAnatomy”, including software updates and documentation and any other associated materials (collectively, the “Services”) supplied to User by LlamaZOO Interactive Inc. (“LlamaZOO”), a British Columbia company having its offices at #200 – 1019 Wharf St, Victoria, British Columbia. By “accepting” this Agreement, or by accessing or using the Services, User agrees to be bound by the terms and conditions herein.
In this Agreement:
- “Agreement” means this Agreement and the Order Form into which this Agreement is incorporated by reference;
- “Billing Period” has the meaning ascribed to it in Section 6(b);
- “Confidential Information” has the meaning ascribed to it in Section 12;
- “Documentation” means the documentation, help files, user manuals, handbooks, service descriptions, and any other written or electronic material relating to the Services provided by LlamaZOO to its customers from time to time;
- “Educational Institution” means a User validly operating as a college or university;
- “Effective Date” means the date User accepts the terms of this Agreement, either by clicking a box indicating User’s acceptance or otherwise accepting an Order Form referencing this Agreement;
- “Feedback” has the meaning ascribed to it in Section 7(c);
- “Fees” means the fees for the Services, as set out in the Order Form;
- “LlamaZOO System” means, in respect of the Services, the entire physical operation(s) located at the facilities designated by LlamaZOO from time to time to host the Services, including all networks and servers, and LlamaZOO and third party hardware and software utilized in the provision of the Services;
- “Order Form” means the order form setting out the details of the Services subscribed to by User, including applicable fees and other terms, and into which this Agreement is incorporated by reference;
- “Representatives” means, in respect of a party, the directors, officers, employees, agents and contractors of such party;
- “Services” has the meaning ascribed to it in the preamble;
- “Subscription Term” has the meaning ascribed to it in Section 5;
- “Term” has the meaning ascribed to it in Section 5;
- “Trial” has the meaning ascribed to it in Section 3; and
- “User Data” means data which User submits in connection with the Services, and which User generates through the use of the
User requires a user account to access the Services. Upon the creation of a user account, LlamaZOO shall provide User with login credentials. User agrees to promptly notify LlamaZOO in the event any information used for such credentials is inaccurate or subject to change, including but not limited to a change in User’s email address. User shall be responsible for maintaining the confidentiality of his or her login credentials, and shall use all reasonable efforts to prevent unauthorized access to or use of the Services. User shall be solely liable to LlamaZOO for all use of User’s account, whether or not authorized by User. User agrees to notify LlamaZOO immediately in the event of any unauthorized use of User’s account.
3. FREE TRIALS
(a) Users are automatically enrolled in a five (5) day free trial (“Trial”) when they create an account, and may request a three (3) day extension of the Trial by providing additional information as requested by LlamaZOO. Trial length shall at all times be subject to LlamaZOO’s sole discretion. LlamaZOO may terminate a Trial at anytime without notice.
(b) User acknowledges that (i) the Services provided as part of a Trial are provided “as is” without warranty of any kind, and are supplied and used at User’s sole risk, and (ii) unless User purchases the Services covered by the free trial, any User Data submitted or generated during the free trial may be permanently lost. LlamaZOO expressly disclaims, and shall have no liability whatsoever, with respect to any Services provided pursuant to this Section 2, or User’s use thereof.
(c) Educational Users are not eligible for Trial periods.
4. LIMITED LICENSE
(a) Subject to and conditional on payment by User of any applicable license fees (the “License Fees”) as determined by LlamaZOO from time to time, LlamaZOO grants User personal, limited, non-exclusive and non-transferable license (without right to sublicense) to access and use the Services solely for non-commercial, educational purposes. For greater certainty, Educational Institutions may access and use the Services hereunder for the purpose of delivering classroom presentations.
(b) Without limiting the generality of the foregoing, the Services and associated materials are licensed and not sold. User may not and may not permit any other party to: (i) sell, rent, loan or otherwise grant any rights or access in or to the Services to any third party; (ii) modify or create derivative works of the Services or associated materials, or any part thereof; (iii) copy or reproduce the Services or any associated materials, in whole or in part, including any images contained in or generated through the use of the Services; (iv) remove any copyright or other proprietary rights marks or legends, including any references to LlamaZOO’s name, contained in or on the Services or associated materials; (v) except as specifically permitted by applicable law, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Services; (vi) use the Services in any manner that could damage, disable, overburden or impair LlamaZOO’s systems, or interfere with any other user’s data or their ability to use the Services; (vii) introduce any kind of malware, including viruses, worms, Trojan horses or other harmful code that may damage the operation of the Services or LlamaZOO’s systems; (viii) attempt to use such methods as SQL Injection, Cross Site Scripting, Remote File Inclusion, Cross Site Request Forgery and any other methods not authorised by LlamaZOO to gain access to LlamaZOO’s systems or the Services; (ix) attempt to gain access to other users’ accounts or data; (x) attempt a “denial of service” (DOS) attack of any kind; (xi) use the Services or LlamaZOO’s systems to transmit spam, junk email or other unsolicited email of any kind; (xii) use or permit the use of the Services in violation of applicable law, or in any way that may result in all or any part of the Services falling into the public domain.
This Agreement shall commence on the Effective Date. If User does not purchase a subscription to the Services prior to the expiry of the then-current Trial period, User shall be restricted to partial access to the Services’ features at the end of the Trial period. If User purchases a subscription to the Services at any time during or following a Trial, this Agreement shall continue in force for the period of the subscription purchased (the “Subscription Term”) and may automatically renew for successive terms of equal duration thereafter, in accordance with the default terms of the app store through which the Subscription Term is initially purchased. The Subscription Term and any Renewal Terms, if any, shall be collectively referred to in this Agreement as the “Term”.
6. FEES AND PAYMENT
(a) User agrees to pay to LlamaZOO the License Fees in accordance with this Section 6.
(b) The License Fees are payable in advance for each the Term specified in the Order Form (the “Billing Period”) by a payment method approved by LlamaZOO. User hereby acknowledges, agrees, and authorizes the collection of License Fees by LlamaZOO or a third-party payment processor. User acknowledges and understands that if User is directed to a third-party payment processor, User may be subject to terms and conditions governing the use of that third party’s services and personal information collection practices. User shall review such terms and conditions before using the third-party’s payment processing services in connection with this Agreement.
(c) Unless otherwise expressly stated, all references to monetary amounts contained in this Agreement, the Order Form, or other documents issued pursuant to or in connection with this Agreement, shall be deemed references to United States
(d) User shall pay interest on any License Fees which are due but unpaid after 30 days at a rate of 2% per month (24% per annum, effective rate) or the maximum amount allowed by applicable law (whichever is less). User agrees to indemnify LlamaZOO for all costs incurred by LlamaZOO related to collection of any such overdue amounts.
(e) Without limiting any other rights and remedies which LlamaZOO may have, LlamaZOO shall have the right to (i) revise payment terms, and/or (ii) immediately suspend or terminate any or all of the Services upon notice but without liability to User or any other party, except for payment of overdue License Fees and accrued but unpaid interest thereon, if any License Fees or other amounts owing by User to LlamaZOO are overdue, or if any billing or contact information provided by User is, false or fraudulent, or not updated by User promptly as necessary.
(f) All License Fees are exclusive of all taxes, duties and levies of any kind, including any sales, use, excise, value-added and other applicable taxes, withholdings, and governmental charges (collectively, “Taxes”). User shall be solely responsible for the payment of all applicable Taxes, other than taxes on LlamaZOO’s income. If LlamaZOO pays any such amounts on behalf of User, User shall reimburse LlamaZOO upon presentation of proof of payment.
6. USER OBLIGATIONS / FEEDBACK
(a) User shall use the Services only in accordance with the applicable Documentation and any other instructions issued, amended or updated by LlamaZOO from time to time.
(b) User shall comply with the terms and conditions of any applicable Order Form.
(c) User is encouraged to provide feedback, comments, ideas and suggestions to LlamaZOO regarding, without limitation, modifications to the Services, usability and error and bug reports (collectively, “Feedback”) provided that User shall not publish or otherwise disclose any Feedback other than to LlamaZOO without LlamaZOO’s prior written consent. Any Feedback can be sent to LlamaZOO at firstname.lastname@example.org, or by using the Services’s integrated submission form. User acknowledges and agrees that LlamaZOO shall have no obligations of confidentiality regarding any Feedback, and further agrees that LlamaZOO and its affiliates or designees shall have a worldwide, perpetual, irrevocable, unrestricted, unlimited and fully paid-up right and license to use, copy, modify, publish, disclose, distribute, license, sublicense, incorporate into its products, and create derivative works of, any Feedback or any ideas or materials contained in or resulting from any Feedback, for any and all commercial and non-commercial purposes. USER EXPRESSLY UNDERSTANDS AND AGREES THAT ANY AND ALL FEEDBACK (INCLUDING, WITHOUT LIMITATION, ALL INTELLECTUAL PROPERTY RIGHTS ARISING FROM SUCH FEEDBACK) IS PROVIDED VOLUNTARILY, WITHOUT EXPECTATION OF ATTRIBUTION, RECOGNITION OR COMPENSATION OF ANY KIND.
LlamaZOO shall make available to User online support for the Services via the website https://llamazoo.zendesk.com/hc/en-us (or any subsequent website designated by LlamaZOO).
9. INTELLECTUAL PROPERTY RIGHTS
(a) User agrees that LlamaZOO owns all intellectual property related to the Services, including but not limited to all patents, patent applications, patent rights, copyrights, moral rights, algorithms, devices, application programming interfaces, databases, data collections, diagrams, inventions, methods and processes (whether or not patentable), know-how, trade secrets, trademarks, service marks and other brand identifiers, network configurations and architectures, proprietary information, protocols, schematics, specifications, software (in any form, including source code and executable code), techniques, interfaces, URLs, web sites, works of authorship, and all other forms of technology, in each case whether or not registered with a governmental entity or embodied in any tangible form and all rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world in any way arising prior to or during the effective date of this Agreement, and any changes, modifications or corrections to the Services. If User is ever held or deemed to be the owner of any intellectual property rights in the Services or any changes, modifications or corrections thereto, then User hereby irrevocably assigns to LlamaZOO all such rights, title and interest and agrees to execute all documents necessary to implement and confirm the letter and intent of this Section 9. No license or other right of any kind is granted by LlamaZOO hereunder, except for the limited right to use and access the Services as expressly provided in this Agreement.
(b) Except for User’s limited right to access and use as expressly set out in this Agreement, all rights, title and interest in and to the Services and associated materials, including any improvements, modifications, adaptations, translations and derivative works, are and shall remain the exclusive property of LlamaZOO and its third party licensors, if any. The Services and associated materials are protected by Canadian and US copyright, trade secret and other intellectual property laws, and international treaty provisions. Intellectual property rights in any third party software supplied with or embedded in the Services shall remain the property of the third party supplier, and User obtains only a limited right to use the third party software in conjunction with the Services. User shall not obtain any implied rights under any LlamaZOO or third party copyright, trade secret, trademark or other intellectual property right.
(a) User shall be solely responsible for the accuracy, quality, integrity and legality of User Data including, but not limited to, compliance with all applicable privacy, security and export laws.
(b) As between the parties, User shall own any data generated through User’s use of the Services (the “User Data”), except to the extent to which it contains any pre-existing LlamaZOO intellectual property. LlamaZOO shall not use User Data or disclose User Data to any third parties, except in connection with the provision of the Services. User acknowledges and agrees that LlamaZOO may (a) store, back-up and archive User Data, either on its own servers or on servers owned by a third party service provider; and (b) use aggregated and/or derivative data generated from the use of the Services, provided that User’s anonymity is maintained.
User agrees that the Services contain valuable trade secrets and confidential information owned by LlamaZOO, including but not limited to code, performance specifications, scripts, algorithms, features and modes of operation, inventions, software design and architecture the development status of the Services, the functionality and features of the Services, the appearance, layout, content and flow of the Services screens, the method and pattern of user interaction with the Services, and the content of the Services’s documentation any test results, and any other information that the recipient reasonably should know is confidential (collectively “Confidential Information”), the unauthorized disclosure of which would cause irreparable harm to LlamaZOO. User shall maintain User’s account information, the Feedback, the existence of this Agreement and the Confidential Information in strictest confidence and shall use best efforts to maintain the confidentiality of such materials. User shall be liable to LlamaZOO for any breach of this provision, and shall cooperate with LlamaZOO for the purposes of identifying and preventing any misuse, including unauthorized copying or disclosure, of any of the foregoing.
13. DISCLAIMER OF WARRANTY
USER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LLAMAZOO AND ITS THIRD PARTY SUPPLIERS HEREBY DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WHETHER ARISING UNDER STATUTE, FROM A COURSE OF DEALING, USAGE, CUSTOM OF THE TRADE OR OTHERWISE, REGARDING THE SERVICES OR ANY ASSOCIATED MATERIALS PROVIDED OR FAILED TO BE PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCESSIBILITY, ACCURACY OR COMPLETENESS OF DATA, PRIVACY OF FILES OR SECURITY.
14. INDEMNIFICATION BY USER
(a) User shall be solely responsible for, and shall hold LlamaZOO and its directors, officers, employees, agents and contractors harmless from any loss, damage or liability arising in connection with: (i) User’s use or misuse of the Services, and all data (including User Data) and other content transmitted, posted, received or created on LlamaZOO’s systems through User’s account, even if transmitted, posted, received or created by a third party; (ii) User’s use, misuse, failure to use, or inability to use any data services required for the use of the Services, including any abuse, fraudulent use or unauthorized access thereto; (iii) any claim by a third party that User Data or User’s use of the Services infringes or misappropriates the intellectual property rights of any third party; and/or (iv) any breach by User of any of the terms and conditions of this Agreement.
(b) Notwithstanding any other provision of this Agreement, LlamaZOO will have no liability to User, and User shall defend and indemnify LlamaZOO and its directors, officers, employees, agents and contractors, to the extent that an actual or alleged infringement of a third party’s intellectual property rights is based upon: (a) a modification to the Services which has not been carried out by LlamaZOO or its agents; (b) any use, operation or combination of the Services with any software, materials or data not supplied or approved by LlamaZOO; (c) use of the Services in a manner for which it is not intended or other than as permitted under this Agreement; or (d) User’s failure to provide relevant information or documentation in accordance with the terms of this agreement.
15. INDEMNIFICATION BY LLAMAZOO
(a) Subject to the limitations of liability contained herein, LlamaZOO shall defend any claim or action brought against User alleging that the Services, as supplied to User, infringes a Canadian or United States patent, copyright or trade secret, and shall indemnify and hold User harmless against resulting costs and damages finally awarded against User, provided that User: (a) promptly notifies LlamaZOO in writing of the existence of the claim or action; (b) allows LlamaZOO sole control of the defence or settlement of the action; (c) provides such reasonable cooperation as LlamaZOO may require; and (d) makes no admissions or other statements which may be prejudicial to LlamaZOO. In no event will User consent to any judgement, agree to settlement, or do any other act in compromise of the claim or action, without LlamaZOO’s prior written consent, User acknowledges that its failure to comply with the foregoing obligations may compromise User’s right to recovery hereunder. In no event shall LlamaZOO be liable for the payment of any amounts agreed to in settlement without its prior written consent.
(b) THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF LLAMAZOO WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS AND OTHER INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHTS BY THE SERVICES, ANY UNDERLYING SERVICES AND ASSOCIATED MATERIALS SUPPLIED PURSUANT TO THIS AGREEMENT.
16. LIMITATIONS OF LIABILITY
(a) UNDER NO CIRCUMSTANCES SHALL LLAMAZOO BE RESPONSIBLE FOR ANY LOSSES, COSTS, DAMAGES OR INJURY CAUSED TO OR INCURRED BY USER OR ANY THIRD PARTIES RESULTING FROM OR IN CONNECTION WITH THEIR USE OF THE SERVICES OR ASSOCIATED MATERIALS, OR ANY LOST OR STOLEN DATA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LLAMAZOO EXPRESSLY DISCLAIMS ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE, OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF THE SERVICES OR ASSOCIATED MATERIALS, OR THEIR PERFORMANCE OR NON-PERFORMANCE, EVEN IF LLAMAZOO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT SHALL LLAMAZOO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED FIFTY DOLLARS (CDN$50). THE FOREGOING LIMITATION SHALL APPLY EVEN IF USER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
(c) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DUE TO THE NATURE OF THE INTERNET, USER AGREES THAT LlamaZOO WILL NOT BE LIABLE FOR ANY LOSS, COSTS OR DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH: ACCESS OR INTERCONNECTIONS WITH THE LlamaZOO SYSTEM OR THE SERVICES; ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS; LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF USER DATA OR USER’S OTHER DATA OR CONTENT, PROGRAMS, CONFIDENTIAL INFORMATION OR SYSTEM.
(d) USER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT IS BETWEEN USER AND LLAMAZOO ONLY, AND THAT THERE ARE NO THIRD PARTY BENEFICIARIES. USER ACKNOWLEDGES AND AGREES THAT IN NO EVENT WILL LLAMAZOO’S THIRD PARTY SUPPLIERS, INCLUDING BUT NOT LIMITED INTERNET SERVICE PROVIDERS, COMMUNICATIONS SERVICE PROVIDERS AND DATA STORAGE PROVIDERS, BE LIABLE TO USER OR TO ANY OTHER PARTY.
(e) NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY USER MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR OUGHT REASONABLY TO HAVE BEEN DISCOVERED BY, USER.
(f) USER AGREES THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT, WITHOUT WHICH LlamaZOO WOULD NOT HAVE ENTERED INTO THIS AGREEMENT AND/OR AGREED TO PROVIDE THE SERVICES UNDER THE CURRENT TERMS.
(g) BECAUSE THE LAWS OF SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO ALL USERS.
Subject to Section 18, LlamaZOO and User who is not an Educational Institution may terminate this Agreement at any time for any reason or for no reason by delivering written notice of termination. Termination rights for Educational Institutions shall be governed by the terms and conditions of the applicable Order Form.
18. EFFECT OF TERMINATION
Upon termination of this Agreement for any reason, User’s rights to access and use the Services shall terminate and User shall immediately discontinue access and use of the Services and shall promptly pay any accrued but unpaid License Fees, including interest, if any, to LlamaZOO. User shall, within five (5) days of termination, delete all documentation and other associated materials from User’s computers and devices related to the Services. Following termination, LlamaZOO may delete any User Data from its systems. Notwithstanding the foregoing or anything in this Agreement, termination of this Agreement shall not: (a) absolve User from any liability as set out herein; or (b) otherwise affect LlamaZOO’s rights hereunder.
The provisions of Sections 6 (Fees and Payment), 7 (User Obligations/Feedback), 9 (Intellectual Property Rights), 10 (Data), 12 (Confidentiality), 13 (Disclaimer of Warranty), 14 (Indemnification By User), 16 (Limitation of Liability), 18 (Effect of Termination), 19 (Survival), 20 (Arbitration), 22(a) (Governing Law), 22(k) (Publicity) shall survive termination of this Agreement and shall continue to bind the parties, their successors, heirs and assigns.
The parties agree that any dispute arising out of this Agreement shall be referred for settlement by arbitration before a single arbitrator in accordance with the International Commercial Arbitration Rules of Procedure of the BC International Commercial Arbitration Centre. The costs of the arbitrator will be borne equally by the parties, but they will otherwise bear their respective costs incurred in connection with the arbitration. No action, regardless of form, arising out of or in connection with this Agreement may be brought by User more than twelve (12) months after the occurrence of the event giving rise to the cause of action, regardless of whether User was aware or ought reasonably to have been aware of the event.
21. INJUNCTIVE RELIEF
Upon any violation of this Agreement by User, LlamaZOO shall have the right to seek any and all remedies available to it under the law and in equity. Additionally, User expressly acknowledges and agrees that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to LlamaZOO which may not be adequately compensated by monetary damages. User, therefore, expressly agrees that in the event of such breach or threatened breach, and in addition to any and all available equitable and legal remedies, LlamaZOO shall have the right to seek equitable injunctive relief in any court having competent jurisdiction in connection with such breach or threatened breach, without the necessity of posting bond or other security, or proving damages.
22. GENERAL PROVISIONS
(a) Governing Law. This Agreement shall be subject to and governed by the laws of the Province of British Columbia, Canada as if it was executed and wholly performed within that Province, but excluding conflicts of laws provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
(b) International Users. User Data or information may be processed and stored in both Canada and the United States. Services are offered only in jurisdictions where they may be lawfully offered for sale, and are offered only to persons to whom it is lawful to make a solicitation. User agrees to comply with all applicable laws, rules and regulations governing User’s use of the Services. If User resides in the European Union or if any transfer of information between User and LlamaZOO is governed by the General Data Protection Regulation (GDPR) or related laws, then User consents to the transfer of such User Data or information outside of the European Union to such country or countries as may be contemplated by the Services’ features and activities.
(c) No Assignment. This Agreement, and all rights and obligations hereunder, are personal to User. User shall not assign or otherwise transfer any rights or obligations under this Agreement.
(e) Amendment. This Agreement may not be amended except by way of a written amendment expressly agreed to by the authorized representatives of both parties. No course of dealing or usage of trade by or between the parties shall be deemed to affect any such amendment or modification.
(f) No Assignment. This Agreement, and all rights and obligations hereunder, are personal to User. User shall not assign or otherwise transfer any rights or obligations under this Agreement.
(g) Force Majeure. Neither party shall be liable for delay or failure in performance (other than the making of payments) resulting from acts beyond the control of such party, including but not limited to, acts of God, acts of war, riot, fire, flood, or other disaster, acts of government, strike lockout, power failures, or the inability to use or the failure of any third party telecommunications carrier or other services, which events or conditions prevent in whole or in part the performance by such party of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make performance commercially unreasonable. In such event, the party affected shall be excused from performance on a day-to-day basis to the extent of the delay, and the other party shall likewise be excused from the performance of its obligations on a day-for-day basis to the extent such party’s obligations related to the performance are so delayed.
(h) Independent Contractors. The parties are independent contractors. Nothing contained in this Agreement shall be deemed to constitute either party or its personnel as a partner, joint venturer, employee or agent of the other party for any purpose.
(i) Notices. Any notice required to be sent or given to a party under this Agreement shall be sent by: (a) User to LlamaZOO by email at email@example.com; or (b) by LlamaZOO to User at the email address provided with User’s account information. Unreturned notices will be deemed to have been received when sent; provided that notices received after 5:00 pm, or on a Saturday, Sunday or public holiday in the place of receipt, shall be deemed to have been received at 9:00 am on the next business day.
(j) Waiver. The failure by LlamaZOO to exercise any right provided in this Agreement shall not be deemed to be a waiver of any prior or subsequent rights.
(k) Publicity. LlamaZOO may use User’s name and trademarks solely for the purpose of identifying User as a LlamaZOO customer on its website, in its marketing materials and in press releases disclosing the existence, but not the contents, of this Agreement. Except as expressly permitted in this Section 20(k) and in Section 12, neither party shall issue any press release, or otherwise publicly identify the other as a past or present User or supplier, in any marketing materials or otherwise, without the express prior authorization of the other party.
(l) Severability. If a court finds any provision of this Agreement to be invalid or unenforceable, the offending provisions shall be deemed to be severed to the extent of the invalidity or unenforceability, and the remainder of this Agreement shall be interpreted so as best to effect the intent of the parties.
(m) Export Control. The Services or other materials made available by LlamaZOO, including any modifications or derivatives thereof, may be subject to the export control laws of Canada, the United States and other jurisdictions. User agrees that it will not use, access or permit the use or access of the Services or other materials supplied by LlamaZOO in violation of any applicable Canadian or United States laws or regulations.
(n) Language/Langue. User agrees that this Agreement, and all correspondence and documentation relating to this Agreement, shall be written in the English language. Vous acceptez que ces termes, ainsi que toute la correspondence et la documentation relative à ces termes, soient rédigées en langue anglaise.
May 19, 2021