1. Definitions
    1. Aggregated Statistical Information” or “ASI” means any Data prepared or produced by Qoints based on Data that it obtains from its customers (including Customer) and other sources, including the Data produced by Qoints based on Customer Data so that such Data is not identified or identifiable as relating to a particular individual or company.
    2. “Customer Data” means any Data that Customer (or any of its Users) loads, receives through, transmits to or enters into the Qoints Platform or otherwise provides to Qoints, including any and all intellectual property rights in any of the foregoing.
    3. Data” means any data, information, record, content, and files.
    4. “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations, adaptations, and results from processing (including analyses, reports, databases, datasets, recommendations, and visual representations) in any form or medium, and “Modify” has a corresponding meaning.
    5. Personal Information” means information about an identifiable individual.
    6. Qoints Platform” means: (i) the software, hardware, and systems used by Qoints to host and make available for Customer’s use the Qoints Services; and (ii) the Qoints Website.
    7. “Qoints Website” means any websites used by Qoints to provide the Qoints Services, including the website located at qoints.com.
    8. Qoints Services” means the services provided by Qoints that assists Customer with analyzing and benchmarking the performance of its marketing campaigns against other campaigns within Customer’s organization or category benchmarks made up of campaigns of other competitor organizations based on Qoints’ proprietary database of campaign Data, as more particularly described on the Qoints Website.
  2. Qoints Platform
    1. Provisioning of the Qoints Platform. Subject to Customer’s compliance with the terms and conditions of this Agreement, Qoints will make the Qoints Platform available to Customer on the terms and conditions set out in this Agreement. Customer may view reports generated using the Qoints Platform.
    2. Limitation, Suspension, or Termination of Access; Qoints Platform Upgrades and Scheduled Downtime. Qoints may, at its discretion and without notice: (i) suspend, terminate, or limit Customer’s access to or use of the Qoints Platform or any component thereof; or (ii) Modify the Qoints Platform.
  3. Ownership
    Qoints expressly reserves all rights, title, and interest in, and Customer will not acquire any right, title or interest in: (i) the Qoints Platform (or any part thereof), any and all Aggregated Statistical Information (or any part thereof) and any other materials or content provided by Qoints under this Agreement, including any and all Modifications to any of the foregoing; and (ii) all intellectual property rights in any of the foregoing (clauses (i) and (ii) are collectively, the “Qoints Property”). All right, title and interest in the Qoints Property will remain with Qoints (or Qoints’ third party suppliers, as applicable).  For greater certainty, the Qoints Property is licensed and not “sold” to Customer.
  4. Right to Use Customer Data and to Generate Aggregated Statistical Information
    Customer grants (and if applicable, will cause each User to grant) to Qoints a non-exclusive, royalty-free, irrevocable, fully paid-up, and worldwide right and license during the Term to reproduce, perform, Modify, develop, access, collect, store and use all Customer Data, including any Data forming part thereof: (i) as required to provide the Qoints Services and make available the Qoints Platform; and (ii) to produce Aggregated Statistical Information. For greater clarity, once Customer Data has been anonymized so that it is not identified or identifiable as relating to a particular individual or company, it will be deemed Aggregated Statistical Information.
  5. Privacy
    Customer understands that Personal Information, including of Users, will be treated in accordance with Qoints’ privacy policy located at: www.qoints.com/privacy (the “Privacy Policy”). The Privacy Policy is hereby incorporated by reference and forms part of this Agreement.
  6. Customer User Account; Use Restrictions.

    1. Customer User Account. Upon Customer’s request, Qoints will issue one user account (the “Customer User Account”) to Customer for use by each individual who is an employee or contractor of Customer that Customer wishes to have access to and use of the Qoints Platform (each, a “User”). Customer will ensure that Users only use the Qoints Platform through their Customer User Account. Customer will not allow Users to share their Customer User Account with any other person. Customer will promptly notify Qoints of any actual or suspected unauthorized use of the Qoints Platform. Qoints reserves the right to suspend, deactivate, or replace any Customer User Account if it determines that the applicable Customer User Account may have been used for an unauthorized purpose.
    2. Use Restrictions. Customer acknowledges and agrees that it is responsible for the compliance by all Users with this Agreement, any guidelines and policies published by Qoints from time to time, and the activities of all Users on the Qoints Platform. Without limiting the generality of any of the foregoing, Customer will not, and will not permit any other person (including any Users) to:
      1. at Customer or the applicable User does not have the lawful right to send,d) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
        a) that contains any information identifying any individual, including clients and customers of Customer.
        b) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or Data;
         c) the upload, collect, transmit, store, use, disclose, process, copy, transmit, distribute and display; or
        d) use the Qoints Platform to send, upload, collect, transmit, store, use, disclose or process, or ask Qoints to obtain from third parties or perform any of the above with respect to, any Customer Data
      2. disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Qoints Platform (e.g., a denial of service attack);
      3. attempt to gain unauthorized access to the Qoints Platform;
      4. use any Data mining, robots, or similar Data gathering or extraction methods, or copy, Modify, reverse engineer, reverse assemble, disassemble, or decompile the Qoints Platform or any part thereof or otherwise attempt to discover any source code, except as expressly provided for in this Agreement;
      5. use the Qoints Platform for the purpose of building a similar or competitive product or service; or
      6. use the Qoints Platform other than as permitted by this Agreement.
  7. Email and Web Support
    1. Customer will generally have access to Qoints’ technical support through email at harris@qoints.com, or through the web site at www.qoints.com/contact.
    2. Customer is not obligated to provide Qoints with any suggestions, enhancements requests, or other feedback (the “Feedback”) about the Qoints Services. Notwithstanding the foregoing, if Customer provides any Feedback to Qoints, Qoints may use and exploit the Feedback, including any Modifications thereto, without restriction or payment.
  8. Fees and Payment
    1.  Fees. Customer will pay to Qoints the applicable fees described on the first page of this Agreement during the Term in accordance with the payment terms set out herein.
    2. Invoicing. From time-to-time, Qoints will prepare and send to the Customer, at the then-current contact information on file with Qoints, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 calendar days of the invoice date. For greater certainty, if Customer has subscribed to an ongoing subscription, then such subscription will automatically renew at its expiry for the same period of time, at the then-current subscription rate described on the Qoints Website, and Qoints will invoice or charge Customer on a recurring basis.
    3. Disputed Invoices or Charges. If Customer believes Qoints has charged or invoiced Customer incorrectly, Customer must contact Qoints no later than 30 days after having been charged by Qoints or receiving such invoice in which the error or problem appeared in order to receive an adjustment or credit. In the event of a dispute, Customer will pay any disputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
    4. Late Payment. Customer may not withhold or “setoff” any amounts due under this Agreement. Qoints reserves the right to suspend Customer’s access to the Qoints Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less) per month or fraction thereof, plus all expenses of collection, until fully paid.
    5. Certain Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, and Customer will pay, indemnify and hold harmless Qoints from same, other than taxes based on the net income or profits of Qoints.
  9. Confidential Information
    1. Definitions. For purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or that a reasonable person would understand to be confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Notwithstanding the foregoing the terms and conditions of this Agreement and all Qoints Property (including any part thereof), whether marked as “confidential” or not, will be Qoints’ Confidential Information and will not be Customer’s Confidential Information.
    2. Confidentiality Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Recipient will be deemed to have discharged its confidentiality obligations under this Section 9 (Confidential Information) if Recipient uses the same degree of care in safeguarding the Confidential Information of Discloser as it uses in protecting its own confidential information of a similar nature from unauthorized disclosure.
    3. Exceptions to Confidentiality. Notwithstanding Section 9(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its employees, accountants, internal and external auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services related to Qoints’ business; or (iii) in the case of Qoints, to potential assignees, acquirers or successors of Qoints if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Qoints.
  10. Warranty; Disclaimer; Indemnity.
    1. Customer Warranty. Customer represents and warrants to, and covenants with Qoints that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Qoints to provide the Qoints Services and to produce Aggregated Statistical Information.
    2. GENERAL DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE QOINTS PLATFORM (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY QOINTS TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”.TO THE EXTENT PERMITTED BY APPLICABLE LAW, QOINTS HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  QOINTS DOES NOT WARRANT THAT THE QOINTS PLATFORM (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, QOINTS EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE QOINTS PLATFORM (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
    3. Indemnity. Customer will defend, indemnify and hold harmless Qoints, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Users) liability (including damages, recoveries, deficiencies, interest, penalties and reasonably legal fees), directly or indirectly arising from or in connection with, or relating to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; (iii) use of the Qoints Platform (or any part thereof) by Customer or any User in combination with any third party software, application or service; (iv) misrepresentation, criminal behaviour or gross negligence on the part of Customer or any User; or (v) any actual or alleged infringement, violation or misappropriation of the rights of any person (including intellectual property or privacy rights) as a result of Customer’s or any User’s use of the Qoints Platform (or any part thereof) contrary to the terms of this Agreement. Customer will fully cooperate with Qoints in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Qoints.
  11. Limitation of LiabilitiesThe Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
    1. AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF QOINTS IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.  IN NO EVENT WILL QOINTS’ THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
    2. TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL QOINTS BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
  12. Term and Termination
    1. Term. This Agreement will commence on the Effective Date and continue for a period of 12 months (the “Initial Term”), and thereafter will automatically renew for successive 12 month terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”) on the terms and conditions set out herein, unless terminated in accordance with the terms and conditions set out herein.
    2. Termination For Convenience. Either party may terminate this Agreement at any time by providing written notice to the other party of not less than 30 days prior to the end of the Initial Term or each Renewal Term.
    3. Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party commits a material breach of any provision of this Agreement and fails within seven days after receipt of notice of such breach to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion, in each case unless the material breach is not capable of being cured.
    4. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership), Section 4 (Right to Use Customer Data), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer; Indemnity), Section 11 (Limitation of Liabilities), Section 12(d) (Survival), and Section 13 (General Provisions).
  13. General Provisions
    1. Unless expressly stated otherwise in this Agreement, any demand, notice, consent, authorization or other communication required or permitted to be given in connection with this Agreement must be given in writing and will be given by email, personal delivery, or sent by prepaid registered mail or by facsimile, in each case addressed to the recipient set out in the “Customer” or “Qoints”, as applicable, section of the chart on the first page of this Agreement. Any notice will be conclusively deemed to have been given on the day of actual delivery thereof.
    2. Assignment. Customer will not assign this Agreement to any third party without Qoints’ prior written consent.  Qoints may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
    3. Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles.  The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein.  The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
    4. Except as otherwise provided in this Agreement, the Parties rights and remedies under this Agreement are cumulative.  The term “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Qoints in this Agreement means the right of Qoints to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
    5. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond Qoints’ reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Qoints employees), Internet service provider failures or delays, or the unavailability or Modification by third parties of third party websites.
    6. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
    7. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
    8. Independent Contractors. Customer’s relationship to Qoints is that of an independent contractor, and neither Party is an agent or partner of the other.  Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Qoints.
    9. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other communications, whether written or oral.
    10. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
    11. English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English.  C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.