Terms and Conditions of Service
Last Updated: August 18, 2024
The CondoWorks Terms and Conditions of Service in effect prior to August 18, 2024 are accessible at https://www.LeapAP.com/cwterms.
PLEASE READ THESE TERMS OF USE (“TERMS”) CAREFULLY. THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND LEAPAP INC. THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SALES ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY, ITS AGENTS, AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated as of the Last Updated date noted below. It is effective between You and Us as of the date of You accepting this Agreement.
You acknowledge Our Privacy Statement located at https://www.LeapAP.com/privacy (the “Privacy Statement”), as revised from time to time, and You consent and agree to our collection, use and disclosure of personal information as described in the Privacy Statement.
1. DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Aggregated Statistics" means data and information related to use of the Services that is used by Us in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services, and general industry analysis. For greater certainty, Aggregated Statistics shall not contain any personal information and does not in any way identify You or any User or include any of Your Data in identifiable form.
“Agreement” or "Terms" means this Terms of Use, together with the Sales Order and any linked documents referred to in the foregoing.
“Content” means information obtained by Us from publicly available sources or third party content providers and made available to Customer through the Services, or pursuant to a Sales Order, as more fully described in the Documentation.
“Deliverables” means any customized deliverables, work product, reports, documents, presentations, materials, information, designs, graphics, content, ideas, concepts, inventions, innovations, works, trade-marks, trade names, know-how, methods, tools, programs, solutions, resources, methodologies, business processes, templates, test cases and plans, test scripts, technologies, software, computer or mobile programs, software architecture, compilations, source code, object code, executable and pseudo code, machine learning code, mobile or web applications, algorithms, frameworks, resources, methodologies, processes, data (excluding Your Data, Global Vendor Data and Aggregated Statistics) and any modifications, enhancements, upgrades and improvements thereto, together with intellectual property rights therein, provided, created, brought into existence, derived or developed by Us or our subcontractors in the provision of Professional Services.
“Documentation” means the applicable Services user manuals, guides or policies, as updated from time to time, provided by Us.
“Malicious Code” means any virus, Trojan horse, worm, or other software, script or code, the effect of which is to permit unauthorized access to, or to alter, disable, encrypt, erase, or otherwise harm, any computer, systems, software or data.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services.
“Non-Company Application” means a Web-based, mobile, offline or other software application functionality that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You or is listed on a Marketplace.
“Professional Services” means any custom development, integration, implementation, reporting, enhanced support, and training services provided by Us or our subcontractors under an applicable Sales Order or this Agreement.
“Sales Order” means a statement of work, online order or other form of initial ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto.
“Services” means the products and services that are ordered by You under a Sales Order, and made available online by Us, including associated offline or mobile components, as described in the Documentation. “Services” includes Professional Services, but excludes Non-Company Applications.
“User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied access credentials (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business. Users may also include Your vendors and prospective vendors.
“We”, “Us”, “Our” or “Company” means LeapAP Inc. and its affiliates and subsidiaries.
“You” or “Your” means the company or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity which have signed Sales Orders, as well as any employees, officers, directors, agents, representatives, and end users, and every person authorized to act as agent for the aforementioned.
“Global Vendor Data” means data submitted by or on behalf of vendors/payees which is used by various clients of the Services and their vendors, and which is editable by the vendors and Us and not by You nor by other clients. This includes but is not limited to vendor contact and address data, payment preferences, and payment remittance and routing data including vendor bank account numbers.
“Your Data” means electronic data and information submitted by or on behalf of You (including information submitted by Your vendors and prospective vendors) through the Services or for use with the Services, excluding Content and Non-Company Applications. Your Data excludes Global Vendor Data.
2. OUR RESPONSIBILITIES
2.1. Provision of Services and Sales Order. Subject to and conditioned on Your payment of Fees and compliance with the terms and conditions of the Agreement, we will (a) make the Services, Content and Deliverables available to You pursuant to this Agreement and the applicable Sales Orders, and (b) provide applicable Company standard support for the Services and Deliverables to You at no additional charge. In the event of a conflict between this Agreement and an applicable Sales Order, the Sales Order shall take precedence only for the purposes of that Sales Order and the terms and provisions of this Agreement are not otherwise amended, modified, cancelled, waived, or released.
2.2. Protection of Your Data. We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and Deliverables and prevent or address service or technical problems, (b) as compelled by law in accordance with the section 7.3 below, or (c) as You expressly permit in writing.
2.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
2.4 Professional Services. From time to time, We may perform Professional Services and provide the Deliverables to You in accordance with an applicable Sales Order entered into by both parties.
2.5 Subcontractors. From time to time, We may use subcontractors selected by Us at Our sole discretion to perform any of the Services under this Agreement or an applicable Sales Order. Notwithstanding the foregoing, Our use of a subcontractor shall not release Us from any duty or liability to fulfill its obligations under this Agreement or an applicable Sales Order.
3. USE OF SERVICES AND CONTENT
3.1. Subscriptions. Unless otherwise provided in the applicable Sales Order or Documentation, (a) Services are purchased as subscription as well as usage-based transaction and activation products, (b) transaction and activation products are invoiced based on actual monthly usage at the unit rates indicated on the Sales Order, (c) credits resulting from consumption of card products are provided in accordance with the Fees and Payment section, and (d) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2. Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Sales Orders and Documentation. Unless otherwise specified, (a) a quantity in a Sales Order refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s login credentials may not be shared with any other individual except as expressly permitted under this Agreement, and (c) except as set forth in a Sales Order, a User’s login credentials may only be reassigned to a new individual replacing one who will no longer use the Services or Deliverables. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute a Sales Order for additional quantities of the applicable Services, Content or Deliverables promptly upon Our request, and/or pay any invoice for excess usage in accordance with the Fees and Payment section.
3.3. Your Responsibilities.
3.3.1 In addition to any obligations and responsibilities described in this Agreement or any Sales Order, You will be responsible for providing Us with sufficient and timely access to facilities, equipment, data (including Your Data), information and personnel as may be necessary or reasonably requested by Us to enable Us to provide the Services and Deliverables. You acknowledge and agree that Your failure to provide such access, information, materials, personnel or approvals on a timely basis as reasonably requested by Us under this Agreement will have a material impact on the provision of the Services and Deliverables, and that We shall not be responsible for any delays or failure to provide the Services or the Deliverables as a result of Your failure to be responsive as reasonably required under this Agreement. You acknowledge that the Services and Deliverables are provided through close collaboration with Your team whose involvement is essential to the success of the Services or the Deliverables. In the event there are any delays by You in fulfilling its responsibilities as stated above or there are errors or inaccuracies in the information provided, We shall be entitled to make reasonable schedule and pricing adjustments, as applicable.
3.3.2 You will (a) be responsible and liable for all uses of the Services and Deliverables resulting from access provided by Us, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, (b) be responsible for Users’ compliance with this Agreement, Documentation and Sales Orders, and any act or omission by a User that would constitute a breach of this Agreement if taken by You will be deemed a breach of this Agreement by You, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, Content and Deliverables, and notify Us promptly of any such unauthorized access or use, (d) use the Services, Content and Deliverables only in accordance with this Agreement, Documentation, Sales Orders and applicable laws and government regulations, (e) be responsible for the accuracy, quality and legality of Your Data, including ensuring that Your Data does not infringe, violate or misappropriate any third-party intellectual property rights, privacy rights, or any other rights granted under applicable laws, (f) be the sole owner of Your Data or have the necessary and required consents, licenses, permits, permissions, releases, clearances and rights to use, display, process, share, post upload and transfer Your Data as contemplated under this Agreement or in use of the Services, (f) ensure that Your Data does not contain any Malicious Code, and (g) comply with terms of service of any Non-Company Applications with which You use Services or Content.
3.3.3 You will not (a) make any Service, Content or Deliverable available to, or use any Service, Content or Deliverable for the benefit of, anyone other than You or Users, unless expressly stated otherwise in a Sales Order or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, Content or Deliverable, or include any Service, Content or Deliverable in a service bureau or outsourcing offering, (c) use the Services, Deliverable or any Non-Company Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services, Deliverables or any Non-Company Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service, Deliverable or third-party data contained therein, (f) attempt to gain unauthorized access to any Service, Content or Deliverable or its related systems or networks, (g) permit direct or indirect access to or use of any Service, Content or Deliverable in a way that circumvents a contractual usage limit, or use any of Services or Deliverables to access or use any of Our intellectual property except as permitted under this Agreement, a Sales Order, or the Documentation, (h) copy, modify or create derivative works of the Services or Deliverable or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in a Sales Order or the Documentation, (j) frame or mirror any part of any Service, Content or Deliverables, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service, Content or Deliverable in order to build a competitive product or service or to benchmark with a Non-Company product or service, (l) reverse engineer, disassemble, decompile, decode, or adapt any Service or Deliverable (to the extent such restriction is permitted by law), (m) remove any proprietary notices from the Services, Content or Deliverable, (n) collect, harvest, reverse look-up, trace, or otherwise seek to obtain any information on any other user of or visitor of the Services, (o) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or any systems or networks connected to them, (p) probe, scan or test the vulnerability of the Services or Deliverables or any network or systems connected to them, or breach the security or authentication measures on them or on any network connected to them, (q) purchase, sell or facilitate the purchase or sale of any User accounts to other users or third parties for cash or digital asset consideration, or (r) access the Services or Deliverables if You are Our competitor, except with Our prior written consent..
3.4. Removal of Content and Non-Company Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-Company Application hosted on a Service by You may violate Our Services or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-Company Application or modify the Non-Company Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-Company Application until the potential violation is resolved.
3.5 Suspension. Notwithstanding anything to the contrary in this Agreement, We may temporarily suspend Your or any User's access to any portion or all of the Services or Deliverables if: (i) We reasonably determine that (A) there is a threat or attack on the Services, (B) Your or any User's use of the Services or Deliverables disrupts or poses a security risk to Us or to any other client or vendor of Ours, (C) You or any User is using the Services or the Deliverables for fraudulent or illegal activities, (D) subject to applicable law, You cease to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, (E) Our provision of the Services and Deliverables to You or any User is prohibited by applicable law, or (F) Our anti-money laundering and counter-terrorist financing compliance program necessitates a suspension; (ii) a vendor of Ours has suspended or terminated Our access to or use of any third-party services or products required to enable You to access or use the Services; or (iii) in the event of non-payment as further set out in the Fees and Payments Section (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). We shall use commercially reasonable efforts to provide written notice of any Service Suspension to You and to provide updates regarding resumption of access to the Services following any Service Suspension. We shall use commercially reasonable efforts to resume providing access to the Services and Deliverables as soon as reasonably possible after the event giving rise to the Service Suspension is cured. We will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that You or any User may incur as a result of a Service Suspension, unless the Service Suspension is a result of Our gross negligence or willful misconduct.
3.6 Modifications. We may modify the Services or Deliverables from time to time without notice to You. We will use commercially reasonable efforts to notify You in advance if a change or modification materially decreases the functionality or features of the Services or Deliverables.
4. NON-COMPANY PROVIDERS
4.1 Third-party Products and Services. We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-Company Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-Company provider, product or service is solely between You and the applicable Non-Company provider. We make no representations or warranties with respect to, nor do We guarantee or endorse, any third-party products or services. We do not guarantee the continued availability of third-party products or services, and may disable them or discontinue their availability or use with the Services in Our sole discretion. We do not warrant or support Non-Company Applications or other Non-Company products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in a Sales Order. Accordingly, We expressly disclaim responsibility and liability for all third-party products and services, and You agree that We shall not be responsible for any loss or damage of any sort incurred as a result of any such dealings or as a result of Your use of such third-party products or services. If You have any issues with a third-party product or service, You must contact the provider of the third-party product or service directly.
4.2 Non-Company Applications and Your Data. If You choose to use a Non-Company Application with a Service, You grant Us permission to allow the Non-Company Application and its provider to access Your Data as required for the interoperation of that Non-Company Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-Company Application or its provider.
4.3 Integration with Non-Company Applications. The Services and Deliverables may contain features designed to interoperate with Non-Company Applications. To use such features, You may be required to obtain access to such Non-Company Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-Company Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Company Application ceases to make the Non-Company Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
4.4 Global Vendor Data. In your use of the Services and Deliverables, we may provide you with access to Global Vendor Data. Any use by You of Global Vendor Data, and any exchange of information between You and any provider of Global Vendor Data is solely between You and the applicable provider. We make no representations or warranties with respect to, nor do We guarantee or endorse, any provider of Global Vendor Data. We do not guarantee the continued availability of specific Global Vendor Data, and may disable them or discontinue their availability for use with the Services at Our sole discretion. We do not warrant or support the accuracy, legality, completeness or fitness of any Global Vendor Data. Accordingly, We expressly disclaim responsibility and liability for all Global Vendor Data, and Your use or reliance on any such Global Vendor Data, and You agree that We shall not be responsible for any loss or damage of any sort incurred as a result of any such dealings or as a result of Your use of any Global Vendor Data. If You have any issues with any Global Vendor Data, You must contact the provider of such Global Vendor Data directly.
5. FEES AND PAYMENT
5.1. Fees. You will pay all fees specified in the Sales Order. Except as otherwise specified herein or in a Sales Order, (i) fees are based on Services and Content subscriptions purchased and actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. We will invoice you in accordance with the applicable Sales Order. Unless otherwise specified in the applicable Sales Order, (i) We will invoice you electronically on or after the first day of every calendar month based on the subscriptions and actual usage in the preceding month, for the items indicated on the Sales Order at the unit rates indicated on the Sales Order, (ii) all credits originating from the usage of card products will be applied to your monthly invoice for the period two months prior to the invoice date (this means that on or after the first day of each calendar month, we will apply the credit resulting from card consumption two months prior), and (iii) payment will be due within 10 days of invoicing, unless otherwise set out in an applicable Sales Order. You will execute a Pre-authorized Debit Agreement or alternative document reasonably acceptable to Us for payment of all of Our invoices/credits from/to your bank account You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. We may invoice You for all Services delivered by Us on a single invoice, even if you have entered into any agreements with our affiliates and subsidiaries, such as for the provision of payments services.
5.3. Overdue Charges. If You fail to make any payment when due, without limiting Our other rights and remedies: (i) We may charge interest on the past due amount at the rate of one and a half percent (1.5%) per month or, if lower, the maximum amount permitted under applicable law; (ii) You shall reimburse Us for all reasonable costs incurred by Us in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, We may suspend Your and all User’s access to any portion or all of the Services until such amounts are paid in full.
5.5. Payment Disputes. We will not exercise Our rights under the "Overdue Charges" or "Suspension" sections above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
5.8 Auditing Rights and Required Records. You agree to maintain complete and accurate records in accordance with generally accepted accounting principles during the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. We may, at Our own expense, on reasonable prior notice, periodically inspect and audit Your records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that You have underpaid Us with respect to any amounts due and payable during the term of this Agreement, You shall promptly pay the amounts necessary to rectify such underpayment, together with interest. You shall pay for the costs of the audit if the audit determines Your underpayment equals or exceeds five percent (5%) during the term of this Agreement. Such inspection and auditing rights will extend throughout the term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. Access to and Use of Services, Content and Deliverables. Subject to the payment of the Fees as set out in the applicable Sales Order and Your compliance with the terms and conditions in this Agreement, We hereby grants to You a limited, non-exclusive, non-sublicensable, non-transferable right to access and use the Services, Deliverables and the Documentation during the Term, solely for use by Your Users, in accordance with the terms and conditions herein.
6.3 Deliverables. Unless otherwise set out in an applicable Sales Order, all right title and interest, including all intellectual property rights, in and to the Deliverables (and all copies, updates, improvements, enhancements, modifications, changes, and derivative works in relation thereto) whether created solely by Us or jointly by Us and You during the term of this Agreement, shall vest in Us upon their creation. You assign and transfer and agree to assign and transfer and cause any employee, affiliate or contractor to assign and transfer to Us all such right, title and interest, worldwide, including all intellectual property rights, in such Deliverables, and You shall unequivocally waive, and shall cause each of Your employees, affiliates and contractors to unequivocally waive, any moral rights in and to the works comprised in such Deliverables. During the term of this Agreement, We grant to You a limited, non-exclusive, non-transferable, worldwide license to use and access the Deliverables, as applicable, for You to use in conjunction with the Services.
6.4 License to Host Your Data and Applications. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to: (i) host, copy, transmit and display Your Data, and any Non-Company Applications and program code created by or for You using a Service or for use by You with the Services and Deliverables, as reasonably necessary for Us to provide the Services and Deliveables in accordance with this Agreement; and (ii) create, develop, modify, update, and train the artificial intelligence, neural network and machine learning models, weighting systems, algorithms, decision trees, methods, methodologies, techniques, processes and procedures used by Us to provide Our products and services (the “Models”), provided that the Models or use thereof by a third party, shall not identify You or include any of Your Data or Your Confidential Information in identifiable form. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-Company Application or such program code.
6.5 License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.
6.6 Know-How. With the exception of Your Confidential Information, We and Our personnel may use and disclose Our general skills, knowledge, experience and know-how, including, without limitation, general processes, concepts, methods, methodologies, techniques, ideas and other residual information gained or learned in the provision of the Services or the Deliverables. Nothing herein shall prevent Us from creating, developing, providing services or products which are the same or materially the same as the Deliverables or anything developed pursuant to this Agreement or an applicable Sales Order for itself or for any third-party, provided that it does not incorporate or reference any of Your Confidential Information or any of Your Data in identifiable form.
6.7 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, We may monitor Your and a User’s use of the Services and collect and compile Aggregated Statistics. All right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Us. You acknowledge that We may compile Aggregated Statistics based on Your Data, and You grant to Us a limited, royalty-free, worldwide license to reproduce, distribute, modify, create derivative works of and otherwise use and display Your Data to create the Aggregated Statistics, including the right to anonymize, de-identify and aggregate any of Your Data such that it no longer contains any personal information or any information that identifies You or any User. You agree that We may use Aggregated Statistics to the extent and in the manner permitted under applicable law, including to develop, optimize, benchmark, or measure Our products or services and for internal research, analytical and informational purposes related to Your use of Our products or services, provided that such Aggregated Statistics do not identify You or any User or include any of Your Data or Your Confidential Information in identifiable form. We shall in no event take steps, or direct a third-party to take steps, to reidentify any personal information or identifiable individuals aggregated or anonymized in the Aggregated Statistics.
7. CONFIDENTIALITY
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services, Content and Deliverables; and Confidential Information of each party includes the terms and conditions of this Agreement and all Sales Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither part will disclose the terms of this Agreement or any Sales Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsels’ or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Sales Order to a subcontractor or Non-Company Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7.4 Security Event. In the event either party becomes aware of any loss, theft or unauthorized access, copying, modification, use or disclosure of the Confidential Information of the other party, or in Your case, the Services or the Deliverables, or in the Our case, Your Data (a “Security Event”), it will, in accordance with applicable law: (i) notify the other party in writing of the circumstances of such Security Event, as well as the nature and details of such loss, theft or unauthorized access, copying, modification or disclosure, including the nature and content of the information so affected as soon as feasible following discovery of the Security Event (taking into account any legal or regulatory restraints on notification and the need to avoid prejudicing current investigations); (ii) promptly respond to such Security Event and investigate and remediate the Security Event in accordance with commercially reasonable industry standards and keep all records, reports and evidence of the Security Event as required by applicable law; (iii) provide cooperation and assistance to the other party, and promptly take such actions as may be necessary or reasonably requested by the other party to minimize the extent of any impacts of such Security Event; and (iv) take all such actions to notify any government authorities or affected persons as may be required by applicable law. Each party agrees to respond to reasonable inquiries received from the other party in connection with a Security Event, and where requested shall make available relevant employees to discuss such inquiries with the other party’s representatives. Each party shall treat all such information received from the party experiencing the Security Event, as the Confidential Information of the party experiencing the Security Event.
8. REPRESENTATION, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Warranties for Subscription Services. We warrant that during the term, the Services You subscribe to will perform and operate materially in accordance with the applicable Documentation, and We will not materially degrade or diminish the functionality of the Services You subscribe to. For any breach of this warranty, Your exclusive remedy and Our entire liability will be to use commercially reasonable efforts to cause the Services You Subscribe to comply with the warranty within a reasonable period of time after receipt of notice in writing from You, or termination of this Agreement with payment to You of a refund for the Fees relating the affected Services during the non-conforming period. For greater certainty, We make no representation or warranty regarding uptime or availability of the Services, unless otherwise specified in an applicable Sales Order.
8.3 Warranties for Professional Services. We warrant that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty, Your exclusive remedy and Our entire liability will be the re-performance or correction and remedy of the applicable portion of the Professional Services. If We are unable to re-perform the Professional Services as warranted, You will be entitled to recover the Professional Services fees paid to Us for the deficient Professional Services. You must make any claim under this warranty to Us in writing within sixty (60) days of the delivery of the applicable Professional Services in order to receive the warranty remedies set out under this Section.
8.4 Proper Use and Exclusive Remedy. The warranties set out above are subject to Your proper use of the Services and compliance with any other obligations on You under this Agreement or an applicable Sales Order. The warranties set out above shall not apply where: (i) You have misused the Services or the Deliverables; (ii) where the warranty issue arising is a result of use of the Services or Deliverables in combination with data, software, hardware, equipment, or technology not provided by Us, including the Non-Company Applications or authorized by Us in writing; (iv) modifications to the Services or Deliverables not made by Us; (v) the issue arises from Your Data; or (vi) the issue arises from the use of products or services provided by third-parties.
8.5 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT OR AN APPLICABLE SALES ORDER AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE SERVICES, CONTENT, DELIVERABLES AND GLOBAL VENDOR DATA ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WE MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES, CONTENT, DELIVERABLES OR GLOBAL VENDOR DATA, OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE (INCLUDING NON-COMPANY APPLICATIONS), SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF MALICIOUS CODE, DEFECTS OR ERRORS. WE MAKE NO WARRANTY OF ANY KIND AND DISCLAIM ANY AND ALL LIABILITY, INDEMNITIES, REPRESENTATIONS, WARRANTIES OR DISCLAIMERS IN RELATION TO ANY THIRD-PARTY PRODUCTS AND SERVICES, GLOBAL VENDOR DATA OR DATA STORAGE OR HOSTING PROVIDER USED IN CONJUNCTION WITH THE SERVICES OR THE DELIVERABLES.
9. INDEMNIFICATION
9.1 Our Indemnification.
(i) We shall indemnify, defend, and hold harmless You from and against any and all losses, damages, liabilities, costs (including reasonable legal fees) ("Losses") incurred by You resulting from any third-party claim, suit, action, or proceeding ("Third-party Claim") that the Services, Content or Deliverables, or any use of the Services, Content or Deliverables in accordance with this Agreement or an applicable Sales Order, infringes, violates or misappropriates any third party's Canadian or American intellectual property rights, provided that You promptly notify Us in writing of the claim, cooperates with Us, and allows Us sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, You agree to permit Us, at Our sole discretion, to: (A) modify or replace the infringing Services, Content or Deliverables; or component or part thereof, to make it non-infringing, or (B) obtain the right for You to continue use. If We determine that neither alternative is reasonably available, We may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to You.
(iii) This Section 9.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services, Content or Deliverables in combination with data, software, hardware, equipment, or technology not provided by Us or authorized by Us in writing; (B) modifications to the Services, Content or Deliverables not made by Us; (C) Your Data; (D) the instructions or requirements provided by You to Us as it relates to the interoperability between the Services, Deliverables and Non-Company Applications; (E) Non-Company Applications; (F) Global Vendor Data; or (G) products and services provided by third-parties.
(iv) THIS SECTION 9.1 SETS FORTH YOUR SOLE REMEDIES AND SERVICE OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES, CONTENT OR DELIVERABLES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9.2 Your Indemnification. You shall indemnify, hold harmless, and, at Our option, defend Us from and against any Losses resulting from any Third-party Claim that Your Data or any Non-Company Applications, or any use of Your Data or any Non-Company Applications in accordance with this Agreement, infringes, violates or misappropriates such third party's intellectual property or privacy rights and any Third-party Claims based on Your or any User's (i) negligence or wilful misconduct; (ii) use of the Services or Deliverables in a manner not authorized by this Agreement; (iii) use of the Services or Deliverables in combination with data, software, hardware, equipment or technology not provided by Us, including any Non-Company Applications, or authorized by Us in writing; or (iv) modifications to the Services, Content or Deliverables not made by Us, provided that You may not settle any Third-party Claim against Us unless We consent to such settlement, and further provided that We will have the right, at Our option, to defend Ourselves against any such Third-party Claim or to participate in the defence thereof by counsel of Our own choice.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. SUBJECT TO SECTION 10.3, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
10.2. Exclusion of Consequential and Related Damages. SUBJECT TO SECTION 10.3, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.3 Exceptions. SECTIONS 10.1 AND 10.2 SHALL NOT APPLY TO YOUR: (I) BREACH OF YOUR CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7; (II) INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.2; (III) BREACH OF YOUR RESPONSIBILITIES AND OBLIGATIONS UNDER SECTION 3.3; AND (IV) GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
11.2. Term of Subscriptions. The term of each subscription shall be as specified in the applicable Sales Order. Except as otherwise specified in a Sales Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
11.3. Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4 Effect of Expiration or Termination. Upon expiration or termination of this Agreement, (i) You shall immediately discontinue use of the Services, Content and Deliverables; (ii) each party shall delete, destroy or return copies of the other party’s Confidential Information; and (iii) We shall immediately discontinue use of Your Data.
11.5. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 11.3 ("Termination"), We will refund You any prepaid fees covering the remainder of the term of all Sales Orders after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 11.3 ("Termination"), You will pay any unpaid fees covering the remainder of the term of all Sales Orders. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.6. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any of Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
11.7. Surviving Provisions. The sections titled “FEES AND PAYMENT”, “PROPRIETARY RIGHTS AND LICENSES”, “CONFIDENTIALITY”, “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS”, “MUTUAL INDEMNIFICATION”, “LIMITATION OF LIABILITY”, “Refund or Payment upon Termination”, “Your Data Portability and Deletion”, “Removal of Content and Non-Company Applications”, “Surviving Provisions”, and “GENERAL PROVISIONS” will survive any termination or expiration of this Agreement, in addition to any other provision which by law or by its nature should survive.
12. NOTICE AND GOVERNING LAW
12.1. General. You are contracting with LeapAP Inc., a corporation incorporated under the laws of Canada. Notices to Us should be addressed by email to contact@leapap.com or to
LeapAP Inc.
30 Windrow St
Richmond Hill ON L4E 0C1
Canada
12.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
12.3 Governing Law. This Agreement and all related documents including Sales Orders and all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.
12.4 Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all Sales Orders, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts in the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
13. GENERAL PROVISIONS
13.1. Export Compliance. This Agreement is expressly made subject to any laws, regulations, orders, or other restrictions on export from the United States of America (U.S.) or Canada of the Services or Deliverables, or any information about any of them, which may be imposed from time to time by the governments of the U.S. or Canada. You shall not export the Services or Deliverables, or any information about any of them without Our prior written consent and compliance with such laws, regulations, orders, and other restrictions. You represent and warrant that (a) You is not located in a country that is subject to a U.S. or Canadian government embargo, or that has been designated by the U.S. or Canadian government as a "terrorist supporting" country, and (b) Your are not listed on any U.S. or Canadian government list of prohibited or restricted parties.
13.2. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will promptly notify Us.
13.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services, Content and Deliverables and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Sales Order, (2) this Agreement, and (3) the Documentation.
13.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Sales Orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.9 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under 7 or, in the case of You, Section 3.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
13.10 Cumulative Remedies. Except as expressly set forth in this Agreement or any applicable Sales Order, the rights and remedies provided hereunder are cumulative and are in addition to and not in substitution of any other rights and remedies available at law, in equity or otherwise.
13.11 Class Action Waiver. Any proceedings to resolve or litigate any dispute, controversy or claim arising under, out of, in connection with, or related to (a) the Services, Content or Deliverables, or (b) this Agreement, or their subject matter, negotiation, performance, renewal, termination, interpretation, or formation, will be conducted solely on an individual basis. Neither party will seek to have any such dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. If this class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then this section will not apply to those parts.
13.12 Amendments. The “Last Updated” date above indicates when this Agreement was last amended. We may unilaterally amend all or any part of this Agreement at any time by updating this Agreement at https://www.LeapAP.com/terms . We will provide You with notice of the proposed amendments by posting an amended version of this Agreement with a new version date. We will include a link to the previous version of this Agreement beneath the new version date. The amendments will take effect thirty (30) days after the date on which the amended version is posted. Prior to that date, the previous version of the Agreement will continue to apply. If You disagree with any amendments, You may refuse the amendments and cease using the Services, Content and Deliverables within the 30-day notice period. There will be no cost or penalty for doing so. If You continue to access or use the Services, Content or Deliverables after the 30-day period, You thereby agree to the amended Agreement. You agree to review this Agreement regularly to determine Your rights and responsibilities.
13.13 Execution and Counterparts. This Agreement and each Order may be executed in one or more counterparts, each of which will be deemed an original but all of which taken together will constitute one and the same instrument. The Parties agree that this Agreement will be legally binding upon the electronic transmission, including by electronic facsimile or email, by each Party of a signed signature page hereof to the other Party.
13.14 Language. This Agreement is drawn up in English at the request of all parties. Les parties aux présentes on expressément convenu que ce contrat soit rédigé en anglais.