1. Definitions
“Agreement” means this FastMap Terms and Conditions and the Purchase Order.
“Business Day” means a day which is not a Saturday or a Sunday or a legal holiday in the City of Calgary, Alberta or Winnipeg, Manitoba.
“Confidential & Proprietary Information” has the meaning set out in Section 11(a).
“Client” has the meaning set out in the Purchase Order.
“Client Data” has the meaning ascribed to it in Section 6(b).
“Derivative Data” means all modifications, compilations, derivative works and results from processing (including analyses, reports, recommendations and visual representations) created or developed from, using or on the basis of Client Data through the FastMap Platform in connection with the Services.
“Effective Date” has the meaning set out in the Purchase Order.
“FastMap” has the meaning set out in the Purchase Order.
“FastMap Platform” means: (i) the Mobile Software; (ii) the Website; and (iii) all other software, hardware, and systems used by FastMap to host and make the Services available for Client’s use and access, including the Website and FastMap’s proprietary APIs.
“FastMap Property” has the meaning set out in Section 6(a).
“FastMap Terms and Conditions” means this set of terms and conditions titled, the “FastMap Terms and Conditions”.
“Fees” means the fees and charges set out in the Purchase Order, as updated from time to time by FastMap in its sole discretion.
“Force Majeure Event” means any event or circumstances beyond FastMap’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving FastMap employees), Internet service provider failures or delays, or the unavailability or modification by third parties of third party sites.
“High Risk Activities” has the meaning set out in Section 5(b)(ii).
“Mobile Software” means the FastMap iOS-based, Windows-based or Android-based mobile application, as applicable, made available by FastMap to Client for the purpose of receiving the Services, including all updates, patches, fixes, enhancements, modifications and improvements thereto.
“Personal Information” has the meaning set out in Section 12(a).
“Privacy Policy” has the meaning set out in Section 4(a).
“Purchase Order” means the purchase order entered into by the Parties that incorporates these FastMap Terms and Conditions by reference.
“Reference Activities” has the meaning set out in Section 16(c).
“Regular Business Hours” means 9:00 a.m. to 5:00 p.m. (Calgary time) on any Business Day.
“Services” means the software-as-a-service solution offered by FastMap designed to provide remote spatial intelligence, as may be updated from time to time by FastMap in its sole discretion as part of the ongoing development of the Solution.
“Solution” means, collectively, the FastMap Platform and the Services.
“Term” has the meaning set out in Section 8.
“Terminal” means any mobile device that is authorized by FastMap and used by Client for the purposes of sending data to and receiving data from the FastMap Platform.
“Third Party Systems” has the meaning set out in Section 4(d).
“User” has the meaning set out in Section 5(a).
“User ID” has the meaning set out in Section 5(a).
“Website” means the FastMap websites used to provide the Services, including the website located at www.fastmap.ca or www.fastmap.ai.
2. Services.
Conditional on Client: (a) providing FastMap with any required access to internal and third party systems (including obtaining all necessary third party consents and permissions, and making all necessary third party disclosures in respect of such access by FastMap); (b) purchasing and installing all necessary hardware needed by FastMap to provide the Services; and (c) ensuring all applicable Client employees agree to the applicable terms of use, FastMap will provide Client with the Services on the terms and conditions herein.
3. License Grants.
(a) License Grants by FastMap. Subject to the terms and conditions of the Agreement, FastMap grants to Client a non-exclusive, non-transferrable, revocable license during the Term to: (i) access and use the FastMap Platform through such interfaces as FastMap may offer from time to time; and (ii) download, install, access, use and run the Mobile Software, in each case, solely to the extent required to use and receive the Services.
(b) License Grant by Client. Subject to the terms and conditions of the Agreement, Client grants to FastMap a royalty-free, irrevocable, fully paid-up, sub-licensable and worldwide license to copy, reproduce, modify, develop, access, collect, store, process, exploit, resell and use the Client Data; provided that FastMap may use Client Data other than in connection with providing any Services only if such Client Data is anonymized or de-identified so that it cannot be reasonably related to Client or any User.
4. Privacy Policy.
Internet Security Disclaimer; Limitation, Suspension, or Termination of Access; Wi-Fi, Cellular, and Satellite Coverage Disclaimer
(a) Privacy Policy. To the extent that Client Data may contain any Personal Information, Client agrees to (on Client’s behalf and on behalf of each User) to FastMap’s use, collection, storage and disclosure of such Personal Information for the purposes authorized under the Agreement and in accordance with FastMap’s privacy policy located at: [website address] (the “Privacy Policy”). The Privacy Policy is hereby incorporated by reference and forms a part of the Agreement, mutatis mutandis.
(b) Internet Security Disclaimer. Client is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data. Client understands that the technical processing and transmission of Client Data is fundamentally necessary to use or receive the Services. Therefore, Client expressly consents to FastMap’s storage of Client Data, which will involve transmission over the Internet, and over various networks, only part of which may be owned or operated by FastMap. Client acknowledges and understands that Client Data may be accessed by unauthorized third parties when communicated across the Internet, network communications facilities, telephone or other electronic means. FastMap is not responsible for any Client Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned or operated by FastMap, including the Internet, third party websites, and Client’s local network. Client agrees that FastMap is not in any way responsible for any interference with Client’s use of or access to the FastMap Platform or security breaches arising from or attributable to the Internet and Client waives any and all claims against FastMap in connection therewith.
(c) Limitation, Suspension or Termination of Access. In addition to any other suspension or termination rights of FastMap pursuant to the Agreement, Client agrees that FastMap may suspend or terminate or limit (as appropriate and as determined in FastMap’s sole discretion) Client’s access to or use of the FastMap Platform or any component thereof, without notice in order to:
(i) prevent any actual or potential misuse or abuse of the FastMap Platform, FastMap Property, or FastMap’s network; (ii) prevent any actual or potential damages to, or degradation of the integrity of, the FastMap Platform, FastMap Property, or FastMap’s network; (iii) comply with any law, regulation, court order, or other governmental request or order; or (iv) otherwise protect FastMap from actual or potential legal liability or harm to its reputation or business. FastMap will use commercially reasonable efforts to notify Client of the reasons for such limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, FastMap will promptly restore Client’s access to the FastMap Platform as soon as the event giving rise to the suspension has been resolved, as determined in FastMap’s sole discretion. Nothing contained in the Agreement will be construed so as to limit FastMap’s ability to take action or invoke remedies, or act as a waiver of FastMap’s rights in any way with respect to any of the foregoing activities. FastMap will not be responsible for any loss or damages incurred by Client as a result of any limitation, termination or suspension of access to or use of the FastMap Platform under this Section.(d) Wi-Fi, Cellular, and Satellite Coverage Disclaimer Client acknowledges and understands that: (i) the Solution is dependent on the availability and coverage of Wi-Fi networks, [satellite networks, cellular networks and the availability of positioning systems] (“Third Party Systems”), which are owned or operated by third parties; and (ii) the performance of the Solution will depend on: (A) the performance, availability, and capacity of Third Party Systems, and any upgrades, repairs, installation, maintenance, modifications to, and relocations of, the Third Party Systems; (B) the proper functioning and location of Terminals relative to Third Party Systems; and (C) other factors external to the Solution such as terrain, signal strength, structural conditions, weather and atmospheric conditions, governmental regulations, suspected fraudulent activities, and any Force Majeure Events. Client agrees that FastMap is not in any way responsible for interferences to Client’s use of or access to the Solution attributable to: (i) the improper use or functioning of any Terminals; or (ii) the unavailability or termination of Third Party Systems, Wi-Fi[, cellular, or satellite coverage] of Third Party Systems, or performance degradation of, inaccuracies of, or limits in, Third Party Systems or Wi-Fi[, cellular, or satellite coverage] of Third Party Systems for any reasons or due to any condition.
5. Client ID; Client Responsibilities and Restrictions.
(a) Client ID. Upon Client’s request, but subject to any limitations associated with Client’s FastMap account or as may be set forth in any Purchase Order, FastMap will issue a user identification and password (“User ID”) to Client for each individual Client wishes to have access to and use of the FastMap Platform (each, a “User”). Users may only access and use the FastMap Platform through a User ID issued to Client. Client is responsible for the compliance by Users with the Agreement, all fees and charges incurred by Users in connection with access to and use of the FastMap Platform, and is responsible for any and all activity occurring under the User IDs associated with Users. Client will not allow Users to share their User ID with any other person. Client is responsible for all access to and use of the FastMap Platform by Users and for maintaining the confidentiality of their User ID and will promptly notify FastMap of any actual or suspected unauthorized use of the FastMap Platform. FastMap reserves the right to replace any User ID if it determines that such User ID may have been used for an unauthorized purpose.
(b) Client Responsibilities and Restrictions. Without limiting the generality of the foregoing, Client agrees that Client will not, and will not permit any person to: (i) use the FastMap Platform other than: (A) as permitted by the Agreement; (B) while taking applicable safety precautions; and (C) in accordance with any guidelines adopted by FastMap from time to time (ii) use the FastMap Platform for life support, emergency situations, or other hazardous activities (“High Risk Activities”); (iii) use the FastMap Platform to send, store, publish, post, upload, use or transmit any Client Data in violation of any warranty, representation or obligation of Client under the Agreement; (iv) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the FastMap Platform available to any third party (other than a User), except as expressly provided in the Agreement; (v) use the FastMap Platform to upload, collect, transmit, store, use or process, or ask FastMap to obtain from third parties, any Client Data: (A) that Client does not have the lawful right to copy, transmit, distribute, and display (including any Client Data that would violate any confidentiality or fiduciary obligations that Client might have with respect to the Client Data); (B) for which Client does not have the consent or permission from the owner of any Personal Information contained therein; (C) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights of any third party (including any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (D) that is tortious, defamatory, obscene, or offensive; or (E) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; (vi) use the FastMap Platform to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, Personal Information or property of another; (vii) continue to use the FastMap Platform in a manner that interferes with or disrupts the integrity or performance of the FastMap Platform following a notice from FastMap of such use;
(viii) attempt to gain unauthorized access to the FastMap Platform or its related systems or networks; (ix) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the FastMap Platform; (x) access the FastMap Platform for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the FastMap Platform; or (xi) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the FastMap Platform or any part thereof or otherwise attempt to discover any source code or modify the FastMap Platform, except as expressly provided for in the Agreement.
6. Reservation of Rights.
(a) Rights Reserved by FastMap. FastMap expressly reserves all rights in, and Client will acquire not rights to: (i) the FastMap Platform (or any part thereof), any and all Derivative Data, and any and all other materials and content provided by FastMap hereunder, including any and all updates, modifications, adaptations, translations, customizations or derivative works of any of the foregoing; and (ii) any and all intellectual property rights in the foregoing (clauses (i) and (ii) are collectively, the “FastMap Property”), in each case, subject to the license rights expressly granted under Section 3(a). All right, title and interest in FastMap Property will remain with FastMap (or FastMap’ third party suppliers, as applicable).
(b) Rights Reserved by Client. Client expressly reserves all rights in, and FastMap will acquire no rights to any and all data, information, content, records and files that Client or any User loads, transmits to or enters into the FastMap Platform or otherwise provides to FastMap, including any data, information, content, records and files that the FastMap Platform obtains from Client’s servers or systems or from third parties on Client’s behalf, including any and all intellectual property rights in any of the foregoing (collectively, the “Client Data”), in each case, subject to the license rights expressly granted under Section 3(b).
7. Client Data.
Client has sole responsibility for the accuracy, appropriateness and completeness of all Client Data. Client represents and warrants that Client has obtained all third party consents, authority and permissions, and has made all third party disclosures, in each case as required by applicable laws, regarding all collection, storage, use, disclosure and transmission of Client Data in connection with the Agreement, including to FastMap and to all applicable distributors, resellers, dealers, and other third parties. FastMap and all applicable distributors, resellers, dealers, and third parties will use the Client Data to perform the Services and for any other lawful purpose including to: (i) conduct statistical analysis; (ii) perform research and development activities; and (iii) understand and analyze User trends. FastMap is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Client Data.
8. Term.
(a) Term. The Agreement will commence on the Effective Date and continue in force and effect until terminated in accordance with Section 15 hereof (the “Term”).
9. Client Support.
FastMap will provide the following standard Client support to Client:
(a) Web and Email Support. Client will have access to FastMap’s technical support phone number (1-403-768-2223) and email address (support@fastmap.ca) during Regular Business Hours.
(b) Service Upgrades and Scheduled Downtime. FastMap may update the Services in its sole discretion and may from time to time schedule downtime for maintenance and upgrades, including suspending the FastMap Platform or the Services for reasonably required emergency maintenance without notice.
(c) Data Storage and Backup. It is Client’s responsibility to backup onto Client’s own local system all Client Data, including all data, files and records that Client submits to FastMap.
10. Fees and Payment.
(a) Fees and Payment Terms. Client will pay FastMap the applicable Fees in accordance with the terms and conditions set out in the Purchase Order and this Section 10.
(b) Disputed Invoices or Charges. If Client believes FastMap has charged or invoiced Client incorrectly, Client must contact FastMap no later than 10 days after having been charged by FastMap 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, Client 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.
(c) Late Payment. Client may not withhold or “setoff” any amounts due under the Agreement. FastMap reserves the right to suspend Client’s access to the 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.
(d) Certain Taxes. The Fees set out in the 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 the Agreement (including, for greater clarity, any transaction on Client’s behalf in respect of which FastMap handles payments or transaction fees), and Client will pay, indemnify and hold harmless FastMap from same, other than taxes based on the net income or profits of FastMap.
11. Confidential and Proprietary Information.
(a) Definitions. For purposes of this section, a Party receiving Confidential & Proprietary Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser” and “Confidential & Proprietary Information” includes all information disclosed by Discloser to Recipient during the Term of the Agreement and marked as “confidential” or “proprietary” or which a reasonable person would understand to be confidential or proprietary; provided that: (i) the terms and conditions of the Agreement and all parts of the FastMap Property, whether marked as “confidential” or “proprietary” or not, will be considered to be FastMap Confidential & Proprietary Information; (ii) all Client Data, whether marked as “confidential” or “proprietary” or not, will be considered Client’s Confidential & Proprietary Information; and further provided that Discloser’s Confidential & Proprietary Information does not include: (A) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information; (B) information that is publicly available through no wrongful act of Recipient; and (C) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under the Agreement; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient will use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event will less than due diligence and reasonable care be exercised. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 11 if it affords the other party’s Confidential & Proprietary Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care). Upon the earlier of : (A) Discloser’s written request; and (B) the termination or expiration of the Agreement, and regardless of whether a dispute may exist, Recipient will return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. FastMap may retain a copy of such Confidential & Proprietary Information for the sole purpose of and to the extent necessary for it to comply with applicable and legal, regulatory, or reasonable internal back-up or archival policies and requirements.
(c) Exceptions to Confidentiality. Notwithstanding Section 11(b), Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is: (A) necessary for the Recipient to enforce its rights under the Agreement; (B) is required by law or by the order of a court or similar judicial or administrative body; (C) to FastMap’s accountants, internal and external auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential & Proprietary Information in order to provide applicable professional advisory services related to FastMap’s business; or (D) to potential assignees or successors of FastMap if and to the extent such persons need to know such Confidential & Proprietary Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of FastMap, 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.
(d) Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief will be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
12. Warranties; Disclaimer; Indemnity.
(a) Client Warranty. Client represents and warrants to, and covenants with FastMap that: (i) the Client Data will contain no information about an identifiable individual or information that is otherwise subject to privacy laws, including the Personal Information Protection and Electronic Documents Act (Canada) or equivalent provincial legislation (“Personal Information”), except for Personal Information (A) in respect of which Client has obtained all applicable third party consents, authority and permissions, and has made all applicable third party disclosures, in each case as required by applicable laws, regarding all collection, storage, use, disclosure and transmission, including to FastMap and to all applicable third parties, and (B) that complies with Client’s representations, warranties and obligations set out in the Agreement; (ii) Client will at all times comply with (and will cause each User to agree to and at all times comply with) FastMap’s standard published policies that Client is aware of (or should be reasonably aware of) and all third party terms and conditions applicable in respect of the FastMap Platform; and (iii) Client’s use of, or access to, the Solution will not violate any applicable laws or the rights of any third party (including applicable intellectual property, data protection, or privacy laws).
(b) Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, THE SOLUTION (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY FASTMAP TO CLIENT ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. FASTMAP HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTIBLE QUALITY, COMPATIBILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE (INCLUDING FOR ANY HIGH RISK ACTIVITIES), OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FASTMAP DOES NOT WARRANT THAT THE SOLUTION (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 THE FOREGOING, FASTMAP EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CLIENT IN CONNECTION WITH CLIENT’S USE OF THE SOLUTION (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON FOR ANY PURPOSE WHATSOEVER.
(c) Indemnity. Client agrees to defend, indemnify and hold harmless FastMap, its employees, officers, directors, affiliates, agents, successors, and assigns against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonably attorney’s fees) to third parties, directly or indirectly arising from or in connection with or relating to: (i) Client Data; (ii) Client’s breach of any of Client’s obligations, representations or warranties hereunder; (iii) Client’s use of the Solution (or any part thereof), including in combination with any third party software, application or service; (iv) misrepresentation, criminal behaviour or gross negligence of Client; or (v) the infringement, violation or misappropriation of the intellectual property rights of any person as a result of Client’s use of the Solution. Client will fully cooperate with FastMap in the defense of any claim and will not settle any claim in relation to the Agreement without prior written consent of FastMap.
13. Limitation of Liabilities.
The 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:
(a) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF FASTMAP IN CONNECTION WITH OR UNDER THE AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY FASTMAP FROM CLIENT UNDER THE AGREEMENT DURING THE PRECEDING SIX MONTHS. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL FASTMAP’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT.
(b) TYPE. IN NO EVENT WILL FASTMAP BE LIABLE TO CLIENT FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE 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. IN NO EVENT WILL FASTMAP BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL FASTMAP BE LIABLE FOR (A) LIBEL, SLANDER, DEFAMATION OR THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS ARISING FROM ANY MATERIALS OR MESSAGES TRANSMITTED THROUGH OR USING THE FASTMAP PLATFORM; (B) DAMAGES ARISING OUT OF CLIENT’S ACT, DEFAULT, NEGLECT OR OMISSION IN THE USE OR OPERATION OF TERMINALS ACTIVATED ON THE FASTMAP PLATFORM; (C) DAMAGES ARISING OUT OF THE TRANSMISSION OF MATERIALS OR MESSAGES ON THE FASTMAP PLATFORM ON CLIENT’S BEHALF, WHICH IS IN ANY WAY UNLAWFUL; OR (D) ANY ACT, OMISSION OR NEGLIGENCE OF OTHER THIRD PARTIES OR TELECOMMUNICATION SYSTEMS IN RELATION TO THE PROVISION OF THE SERVICE TO CLIENT, WHEN THE FACILITIES OF SUCH OTHER COMPANIES OR TELECOMMUNICATIONS SYSTEMS ARE USED IN ESTABLISHING CONNECTIONS TO OR FROM FACILITIES AND EQUIPMENT CONTROLLED BY CLIENT.
14. Notices.
(a) Unless expressly stated otherwise in the Agreement, any demand, notice, consent, authorization or other communication required or permitted to be given in connection with the 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 as follows: (i) to Client at the address set out in the section of the Purchase Order titled, “Client Information”; and (ii) to FastMap as follows:
Attention: Daniel Brooker
Email: info@fastmap.ca
208, 3016 19th Street NE
Calgary, Alberta
T2E 6Y9
or to such other email, address, individual or facsimile number as may be designated by notice given by either Party to the other Party in the same manner.
(b) Any demand, notice, consent, authorization or other communication given by personal delivery will be conclusively deemed to have been given on the day of actual delivery thereof, or if given by email, upon transmittal thereof, or if given by registered mail, on the 5th Business Day following the deposit thereof in the mail. If the Party giving the demand, notice, consent, authorization or other communication knows or ought reasonably to know of any difficulties with the postal system that might affect the delivery of mail, any such demand, notice, consent, authorization or other communication may not be mailed but must be given by personal delivery.
15. Termination.
Termination For Convenience. Either Party may terminate the Agreement at any time by providing advance written notice of not less than 30 days to the other Party without payment of any termination fees, charges or penalties in connection therewith, except for any fees, charges and other amounts that have become due and payable hereunder prior to the effective date of termination.
(a) Termination For Non-Payment. FastMap may terminate the Agreement immediately if Client fails to pay FastMap any amounts payable under the Agreement when due.
(b) Generally. Either Party may, in addition to other relief, suspend or terminate the Agreement if the other Party commits a material breach of any provision hereof and fails within 15 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. Either Party may terminate the Agreement immediately on written notice to the other Party, if the other Party becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in bankruptcy is filed with respect to the Party and is not dismissed within 30 days.
(c) Survival. Upon termination or expiration of the Agreement for any reason: (a) all rights and obligations of both Parties (except for Client’s payment of all sums then owing), including all licenses granted hereunder, will immediately terminate except as provided below; (b) within 30 days after the effective date of termination, each Party will comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth Section 11 (Confidential & Proprietary Information). The following Sections, together with any other provision of the Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of the Agreement, will survive expiration or termination of the Agreement for any reason: Section 6 (Reservation of Rights), Section 7 (Client Data), Section 11 (Confidential & Proprietary Information), Section 12 (Warranty Disclaimer; Disclaimer; Indemnity), Section 13 (Limitation of Liabilities), Section 15(c) (Survival), and Section 16 (General Provisions).
16. General Provisions.
(a) Assignment. Client will not assign the Agreement to any third party without FastMap’s prior written consent. FastMap may assign the Agreement or any rights hereunder to any third party without Client’s consent. Any assignment in violation of this Section will be void. The terms of the Agreement will be binding upon permitted assignees. The Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
(b) Choice of Law. (i) The Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Alberta and the federal laws of Canada applicable therein, without regard to conflicts of law principles, and the Parties will initiate any lawsuits in connection with the Agreement in Calgary, Alberta, and irrevocably consent to the exclusive personal jurisdiction and venue of the courts sitting therein. (ii) The U.N. Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
(c) Right to Reference As A Client. Without limitation to any other licenses or rights granted by Client hereunder, Client expressly consents to the commercial or non-commercial use and publication by FastMap, for reasons related to FastMap’s provision of the Services and operation of the FastMap Platform, of any of Client’s company logo, quotes, press releases, success stories, recordings (if any) of speaking engagements, and video testimonials (collectively “Reference Activities”), in whole or in part, or composite, without restriction as to changes or alterations, from time to time, in conjunction with Client’s company name, as it relates to Client’s relationship with FastMap. Client understands that by execution of the Agreement, Client is relinquishing all rights to such Reference Activities and to any future compensation for publication or use of the same. Client also understands that FastMap retains the right to publish such Reference Activities in any medium including reproductions, magazines, newspapers, email and the Internet. Client will not have the right to view or approve such Reference Activities, or the advertising copy or printed matter that may be used in conjunction therewith, or the uses to which it may be applied, prior to publication by FastMap.
(d) Compliance with Export Regulations. Client has or will obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals. Client will indemnify and hold FastMap harmless from, and bear all expenses of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Client will not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.
(e) Construction. Except as otherwise provided herein, the Parties rights and remedies under the Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of the Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of FastMap herein mean the right of FastMap to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Client.
(f) Currency. Unless expressly provided otherwise, all references to money amounts are to the lawful currency of Canada.
(g) Force Majeure. Neither Party will be liable for delays caused by events beyond its reasonable control, including for any Force Majeure Events, except non-payment of amounts due hereunder will not be excused by this provision.
(h) Severable. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable will be automatically conformed to the minimum requirements of law and all other provisions will remain in full force and effect.
(i) Waiver. Waiver of any provision hereof in one instance will not preclude enforcement thereof on future occasions.
(j) Independent Contractors. Client’s relationship to FastMap is that of an independent contractor, and neither Party is an agent or partner of the other. Client will not have, and will not represent to any third party that it has, any authority to act on behalf of FastMap.
(k) Entire Agreement. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral.
(l) Conflicts. If any of the terms and conditions in this FastMap Terms and Conditions are inconsistent or in conflict with the terms and conditions of the Purchase Order, the terms and conditions of the Purchase Order will apply to the extent of such inconsistency or conflict.
(m) Electronic Execution. The Agreement may be executed in one or more counterparts and may be executed and delivered by facsimile or other electronic transmission and all counterparts and electronic transmissions will be as effective as delivery of a manually executed copy of the Agreement and together will constitute one of the same instrument.
(n) Amendments. No amendment, supplement, modification, waiver or termination of the Agreement and, unless otherwise specified, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. Any waiver by one Party of any default by the other Party will not affect or impair any rights of the first Party arising from any subsequent default by that other Party.
(o) Further Assurances. The Parties agree to do or cause to be done all acts or things necessary to implement and carry into effect the Agreement to its full extent.
(p) English Language. It is the express wish of the Parties that the 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.
