Last Updated: October 2019
MASTER SERVICES AGREEMENT
PREAMBLE
1.1 These terms and conditions (the “Agreement”) that follow shall govern any Order Form (“OF”) executed by Ring Partner Inc. (“Canoe”) and the Client (“Client”) named below and in the OF.
1.2 Canoe provides Clients with a simple lead distribution and transaction solution, including without limitation, calls, transfers, or referrals (collectively, a “Lead” or “Leads”) and, where applicable, the ability to sell those Leads to Clients’ buyers (“Advertisers”).
1.3 Client wishes to purchase Services (as defined in the applicable OF) from Canoe.
1.4 In consideration of the mutual covenants and agreements herein and in the OF and other good and valuable consideration, the receipt and sufficiency are hereby acknowledged, Canoe and Client (each a “Party”, collectively the “Parties”) hereby acknowledge and agree as follows:
2. ORDER FORM
2.1 The Parties agree and acknowledge that where there is a conflict between the Agreement and the applicable OF, the terms and conditions defined in the OF shall prevail.
3. CLIENT ACCOUNT
3.1 In order to access the Services, Client shall create a Canoe account. When creating such account, Client must: (i) provide accurate and complete information; and (ii) keep such Canoe account information up to date.
3.2 Client assumes sole responsibility for: (i) maintaining the confidentiality and security of the username and password used to manage such account; (ii) any and all activities that occur through such account or through the use of Client’s username and password; and (iii) any and all activities that occur through a Canoe account that is accessed by a Publisher, third parties with whom Client contracts with to generate Leads that Client purchases.
4. SERVICES
4.1 Client Responsibilities – In order for Canoe to provide the Services, Client shall, in a timely manner upon execution of the applicable OF, provide to Canoe: (i) posting instructions and API key (collectively, “Integration Documents”) from its Advertiser(s) in order for Canoe to integrate such Advertiser(s) into the Canoe Lead Platform to be able to purchase Leads (“Integration”); and (ii) a technical contact, including name, email, and phone number, for such Advertiser(s). Client acknowledges and agrees that: (i) it is the Client and Advertisers’ responsibility to test that an Integration is functional, and that in no event will Canoe be liable for the functionality of an Integration; (ii) Canoe requires two (2) business days’ Notice for changes to the terms of an Integration Document; (iii) Client is solely responsible for the integrations of its Publishers; (iv) Client is responsible for the creation of its campaigns, and management of such campaigns, via its Canoe Account; and (v) Canoe reserves the right, upon notification to Client, to cease an Integration if, after commercially reasonable efforts, such Integration is not functional, and Client agrees that such cease shall have no bearing on Fees due and owing from Client to Canoe.
4.2 Canoe Responsibilities – Canoe will: (i) make the Services available to Client, pursuant to this Agreement and the applicable OF; (ii) provide applicable Canoe standard support for the purchased Services to Client at no additional charge; (iii) make commercially reasonable efforts to complete an Integration in a timely and accurate manner, but makes no guarantees to Client with regards to completion time of an Integration; and (iv) upon notification by Client that an Integration is not functional, work promptly towards resolving such Integration so that it is functional.
5. PAYMENT
5.1 Covenant to Pay – Client shall pay to Canoe the monthly Service Fee and Lead Fees, as are set out in the applicable OF (collectively, the “Fee”), following the payment schedule as agreed upon in such applicable OF. Tracking and reporting of payable Leads shall be based solely on Canoe’s reporting system.
5.2 Payment Terms – Canoe shall charge Client in accordance with the terms of the OF and Credit Card Authorization Form, and Client shall pay any such charge to Canoe, including, without limitation, all applicable sales, use, excise or other taxes, without set¬off, abatement, compensation or deduction, all in accordance with this Agreement and the additional terms set out in the OF. Client shall provide to Canoe any and all updates to billing contact information promptly after Client implements any updates to such information. Each Party shall be responsible for any and all costs, fees, charges, and expenses incurred as a result of its remittance or receipt of any payments hereunder. All references to currency shall mean United States dollars ($USD).
5.3 Overdue Payments – To the fullest extent permitted by applicable law, overdue payments will accrue interest at the lesser rate of eighteen (18%) percent per annum or the maximum rate permitted by law, calculated from the date upon which payment is due, compounded monthly.
5.4 Suspension of Services - Notwithstanding any contrary provision, Canoe shall have the right to suspend any or all Services while there are outstanding payments due from Client.
6. LICENSE
6.1 Subject to the terms and conditions of this Agreement, Client is hereby granted a limited, non-exclusive, non-transferable, revocable license (“License”) to use the Canoe lead platform as found at www.<<Client name>>.canoeleads.com (“Canoe Lead Platform”), as permitted by the features of the Canoe Lead Platform. Canoe reserves all rights not expressly granted herein, and may terminate this license at any time for any reason or no reason.
6.2 The License does not include or authorize: (i) any resale, distribution, public performance, or public display of the Canoe Lead Platform; (ii) modifying or otherwise making any derivative uses of the Canoe Lead Platform; (iii) use of any data mining robots or similar data gathering or extraction methods; (iv) downloading of any portion of the Canoe Lead Platform, except as expressly permitted by Canoe; or (v) any use of the Canoe Lead Platform other than for its intended purpose. The Canoe Lead Platform and all materials therein or transferred thereby, including without limitation, images, texts, logos, trademarks, service marks, software, or copyrights, are the exclusive property of Canoe. Except as expressly provided herein, nothing in this Agreement shall be deemed to create a license in or under any intellectual property rights.
6.3 Canoe may require Client to provide Canoe images, text, graphics, logos, and/ or service marks (“Client Content”) for customization purposes of the Canoe Lead Platform. Except as agreed upon in this Agreement, the applicable OF, or in writing between the Parties, Canoe agrees that it shall not sell, distribute, reproduce, or transmit the Client Content for any purpose.
7. REPRESENTATIONS, WARRNATIES, AND COVENANTS
7.1 Representations of Canoe – Canoe represents and warrant that: (a) it has the authority to enter into and to be bound by the OF and this Agreement; (b) the Services provided by Canoe in accordance with OF and the Agreement shall comply in all material respects with the laws applicable in the jurisdictions where Canoe conducts its business; and (c) Canoe does not permit its network or computer systems to be used in the distribution of materials which is known to contain false or deceptive advertising or any machine readable code including without limitation any virus, Trojan horse, worm or other self-executing program, or any content which is defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate. The Services provided by Canoe herein shall include access to the Canoe Lead Platform and Lead integrations of Clients’ Advetisers to be able to purchase Leads via the Canoe Lead Platform (“Integrations”), but in no event shall Canoe be liable for: (I) any action or inaction by Client, or any third parties Client contracts with, with regards to the Leads generated hereunder; or (ii) the handling of any personal data contained in a Lead.
7.2 Representations of Client - Client represents and warrants that: (a) it has the authority to enter into and to be bound by the OF and this Agreement; (b) it is an existing legal entity and its full legal name is correctly set out above its signature to the OF, and that it will immediately notify Canoe in writing of any change to its legal and/or business names; (c) the individual completing the applicable OF has the authority to bind Client to this Agreement; (d) all consumer data collected pursuant to the OF or this Agreement shall only be used for legal purposes; (e) it does and will comply at all times, and its Advertisers and Publishers do and will comply at all times, with all applicable federal, state, provincial, local laws, ordinances, regulations, codes, including without limitation, all applicable FTC rules and its privacy policy, the Telephone Consumer Protection Act of 1991, the Telemarketing and Consumer Fraud and Abuse Prevention Act of 1994, the Telemarketing Sales Rule established by the Federal Trade Commission, and any state, provincial, or federal Do Not Call (DNC) lists, all as amended or replaced from time to time; and (f) the advertising material used by Publishers to generate Leads hereunder does not and will not (1) violate or encourage the violation of any third party copyright, trademark, trade secret, patent, or other intellectual property right, or any applicable law, rules or regulations; (2) target children under the age of thirteen (13) and/or offers products or services that are illegal for minors to buy, possess or participate in; (3) contain any content which is defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate, or (4) otherwise violate any applicable law or regulation with respect to the offering of a sweepstakes, promotion, gambling or otherwise.
7.3 Disclaimer – CANOE HAS NO LIABILITY WITH RESPECT TO THE SOFTWARE, SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, DIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF CANOE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In a case where Canoe experiences interruptions of Services due to regular maintenance, hardware upgrades, or interruptions that are outside of its control, including failures of third parties (such as telephone service providers, website hosts, and natural disasters) (collectively, Interruptions”), Canoe shall not be liable for any damage whatsoever incurred by Client during such Interruptions unless such Interruptions make the execution of this Agreement impossible, in which case Canoe’s liability shall be limited to the Fees paid by Client for the month in which the Interruption occurred.
7.4 Covenants of Client – Client shall: (a) at all times, comply with all laws applicable in the jurisdiction where Client is situated or conducts its business; (b) at all times, comply with the terms of this Agreement and the OF; (c) not use the Canoe Leads Platform, directly or indirectly, through the actions of Client and/or its Advertisers and Publishers: (I) to infringe the privacy rights, property rights, or any other rights of any person; (II) to engage in any way in the advertisement of illegal products or services, or in other marketing activities that violate generally-accepted advertising or marketing industry guidelines; (III) in any manner that is deceptive, misleading, fraudulent or otherwise illegal, or that promotes illegal activities, including engaging in phishing or otherwise obtaining financial information in a misleading manner or for fraudulent or misleading purposes; (IV) in any manner that, in Canoe’s sole discretion, could disable, overburden, or damage it; or (V) in any manner that constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services or products
8. INDEMNITY
8.1 Canoe Indemnity - Subject to the limitations expressed in this Agreement, Canoe shall indemnify, defend and hold harmless Client from and against any and all third party claims, proceedings, or suits made or brought against Client by a third party alleging that any Services infringe or misappropriate such third party’s intellectual property rights, provided that Client: (i) gives prompt written notice to Canoe in the event that it becomes aware of a claim or the possibility of a claim; (ii) gives sole control to Canoe of the defense and settlement of the claim against Client; and (iii) gives Client all reasonable assistance, at Canoe’s expense.
8.2 Client Indemnity – Client shall indemnify, defend and hold Canoe and any officer, director, employee, parent company, subsidiary or affiliated company of Canoe harmless from and against any and all third party claims, actions, proceedings, suits, losses, costs, expenses, liabilities or damages, including, without limitation, reasonable fees and disbursements of counsel whether or not suit is brought arising directly or indirectly from: (i) Client’s use of the Canoe Lead Platform, including any data or content transmitted or received by Client; (ii) Client’s violation of any term of this Agreement or the applicable OF; (iii) Client’s violation of any third-party right, including without limitation, any intellectual property or privacy rights; (iv) Client’s, or its Advertisers’ or Publishers’ hereunder, violation of any applicable law, rule, or regulation; (v) any Client Content or any content that is submitted by Client via Client’s Canoe account, including without limitation, any false, misleading, or inaccurate information; (vi) Client’s willful misconduct or gross negligence; and (vii) any other party’s access and use of Canoe with Client’s unique username and password, or the unique username and password of a Publisher, in the case that Client has created Canoe account access for its Publishers.
8.3 Limitation of Liability - EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO CIRCUMSTANCE SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS (INCLUDING WITHOUT LIMITATION CLAIMS FOR LOSS OF GOODWILL, USE OF OR RELIANCE ON THE SERVICES PROVIDED HEREUNDER, INTERRUPTION OF BUSINESS OR IMPAIRMENT OF OTHER ASSETS) ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the foregoing, except for payment obligations hereunder, neither Party shall be liable for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, actions or inaction of third parties, or any third party equipment or any other condition affecting production or delivery in any manner beyond the reasonable control of either Party. CANOE’S TOTAL LIABILITY TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL MONTHLY RECURRING FEES PAID TO CANOE BY CLIENT DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY.
9. NOTICE, TERM, AND TERMINATION
9.1 Notice – Any notice or other communication permitted or required in the Agreement or in the OF (“Notice”) will be in writing and given by personal delivery via courier or transmitted by facsimile or electronic mail to the receiving party at the address noted on the most recent OF. Any such Notice will be deemed to have been received on the date on which it was transmitted by facsimile, electronic mail, or delivered.
9.2 Term of Agreement – This Agreement commences on the date Client and Canoe execute an applicable OF and continues until the Agreement has been terminated by a Party in accordance with this Agreement and the applicable OF.
9.3 Term of Purchased Services –Upon the expiration of the Initial Term, as defined in the applicable OF, the Services shall be automatically renewed for one (1) year periods unless, at least thirty (30) days prior to the renewal date, either Party gives the other Party written Notice not to renew the Services. Such Notice to terminate shall be effective at the end of the then current Term.
9.4 Termination - Canoe may terminate the OF at any time, or limit Client’s ability to access the Canoe Lead Platform at any time, on written notice to Client, if in the opinion of Canoe the Client has breached the OF or the Agreement or, otherwise, an OF to be undertaken: (a) does or is likely to violate any applicable law, regulation, bylaw, code or order of any governmental body having jurisdiction; (b) is defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate; or (c) might harm the reputation of Canoe, its directors or anyone for whom Canoe is in law responsible.
9.5 Notwithstanding termination of the OF for any reason, Client shall remain liable to pay to Canoe any sum due and owing in accordance with the OF and this Agreement and will promptly remit any outstanding payments due on or before thirty (30) days following any termination of the OF or this Agreement. Each Party’s obligations arising under Sections 3- 10 and any other provisions of the Agreement which by their nature are intended to survive will survive termination of the OF or this Agreement, for any reason.
10. GENERAL
10.1 Jurisdiction -The OF and the Agreement shall be interpreted, construed as if both Parties jointly wrote it, and shall be governed exclusively in all respects in accordance with the laws of the Province of British Columbia, Canada, excluding its conflict of law rules and the United Nations Convention on Contracts for the Sale of International Goods. The Parties irrevocably submit to the exclusive jurisdiction of the courts of British Columbia with respect to all disputes arising out of or in connection with this Agreement or in respect of any legal relationship associated with or derived from this Agreement and expressly and irrevocably waive any defense of personal and/or subject matter jurisdiction in those courts or ground of forum non conveniens.
10.2 Interpretation -The section and paragraph headings contained in the Agreement are for the convenience of the Parties only, and shall not for any purpose whatsoever be deemed part of the same.
10.3 Assignment - Neither Party will undergo a Change of Control or assign the OF or this Agreement without the prior express written consent of the other Party, not to be unreasonably withheld or delayed. Despite the foregoing, Canoe may assign this Agreement and the obligations hereunder to any wholly owned subsidiary, any parent company owning a majority of Canoe, or to any successor in the case of a sale of all or substantially all of Canoe’s assets, provided that Canoe provides written notice to Client. “Change of Control” means (a) the sale of more than fifty-one percent of the issued and outstanding voting shares in the capital of a corporation or (b) the sale of all or substantially all of the assets of a company.
10.4 Amendment/Waiver— Canoe may, in its sole discretion, modify or update this Agreement from time to time, and it is Client’s responsibility to review this page periodically. Client’s continued use of the Services after any such change constitutes Client’s acceptance of the updated Agreement. The failure of a Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by one or both of the Parties of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a Party to enforce each and every such provision thereafter.
10.5 NonPartner -It is expressly agreed that the Parties intend by the OF and the Agreement to establish a business relationship between Canoe and Client, but that it is not the intention of either party to undertake a joint venture or to make Canoe in any sense an agent, employee, or partner of Client. The Parties expressly agree that they are independent contractors, and that this Agreement or any other agreement signed by Canoe and Client does not in any way, despite the fact that the word “partner” may be used in such agreements, create a partnership as contemplated at common law or in accordance with any applicable statute, nor have the parties granted to each other any right or authority to assume or create any obligation of responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner whatsoever.
10.6 Publicity - Canoe reserves the right to include Client’s name in any advertisement, publication, press release or promotional material, subject to approval by Client, not to be unreasonably withheld. Upon request, Client may supply Canoe with at least one (1) digital copy of art and/or other possible promotional materials produced that may be copied, printed, and/or distributed at conferences, signings, mailings, trade shows, etc.
10.7 Severability -If any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent possible, and the validity and enforceability of the remaining provisions herein will not in any way be affected or impaired thereby. If such a provision is not capable of being adjusted, it will be deemed to be severed herefrom and the validity and enforceability of the remaining provisions herein will not in any way be affected of impaired thereby.
10.8 Binding -This Agreement will inure to the benefit of and be binding upon the respective successors, heirs and permitted assigns of the Parties.
10.9 Affiliates -For purposes of this Agreement, the term “affiliate” as used herein shall mean an entity controlled by, controlling or under ultimate common control, directly or indirectly, through one or more intermediaries, with one of the Parties to this Agreement. For the purpose of this Agreement, the person signing on behalf of the Party named below has the authority to bind that Party and all of its affiliates.
10.10 Entire Agreement—This Agreement and the OF constitutes the entire agreement between the Parties and supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written with respect to the subject matter hereof. The terms of this Agreement also shall supersede any online agreement entered into between the Parties, and the terms of such online agreement shall not apply.