Version 1.1 last updated May 2013
These terms and conditions apply to the live publishing content management web service (“ScribbleLive”) operated by Scribble Technologies Inc. (“The Company”) and described more particularly at www.scribblelive.com. ScribbleLive allows users to create live stories on the Internet, to invite others to participate in those live stories, and to publish on the Internet and syndicate through the Internet the content created in those live stories. These Terms and Conditions, and the Order Forms that our customers complete when they use ScribbleLive (together, the “Agreement”), govern your use of ScribbleLive.
There are three main uses of ScribbleLive:
- creating and publishing live stories and other content created by you and the people you invite to participate in your stories,
- licensing others to publish your stories, and
- licensing stories from other publishers.
If you are an Enterprise customer paragraphs 4 and 5 of the terms covering the second and third uses of ScribbleLive are optional any only apply if you choose to publish content from others or choose to license some or all of your content to others via ScribbleLive. If you are not an Enterprise customer, the terms covering all three uses automatically apply to you unless specifically excluded by ScribbleLive on a signed Order Form.
1.1 For the purposes of this Agreement:
- “Acceptable Use Policy” means The Company’s generally applicable acceptable use policy governing the use of ScribbleLive, as it may be amended by The Company from time to time in its sole discretion.
- “Agreement” means collectively these Terms and Conditions, any Order Forms submitted by Customer and accepted by The Company and the applicable Service Plan Description.
- “Basic Account Customer” means a Publishing Customer other than an Enterprise Customer
- “Confidential Information” means all information that is not generally available to or used by others and that is disclosed or made available by one party to the other party in connection with this Agreement. Confidential Information includes, but is not limited to, research, product plans, products, services, customer lists, development plans, designs, drawings, marketing, finances, and other business information, and also includes Personal Information and the Technology. For greater certainty, after they are published on a Story, Materials are deemed not to be Confidential Information.
- “Customer” means a person who has completed an Agreement with The Company and is thereby authorized to publish and/or syndicate Stories using ScribbleLive. A Customer may be a Publishing Customer, or a Syndication Customer, or both.
- “Customer Materials” means any images, text or other content or media published by Customer on a Story.
- “Default” means a default as set out in Article 7.
- “Disclosing Party” means a party to this Agreement that discloses, either directly or through agents, Confidential Information to a Receiving Party or its Representative.
- “Enterprise Account Customer” means a Publishing Customer described as an Enterprise Account Customer in the Service Plan Description or specified as such on an Order Form.
- “Fees” means The Company’s fees and other charges for the use of the Service.
- “Materials” means, when used in reference to a Customer, collectively, Customer Materials of the Customer and Website User Materials published on a Story of the Customer.
- “Order Form” means (i) a completed copy of The Company’s printed Services order form, which sets out applicable pricing information and other information related to Customer’s use of ScribbleLive, that has been accepted in writing by The Company; and/or (ii) in the case of a subscription to the Services or an amendment thereto that is purchased online, the subscription information provided by Customer in The Company’s online order form
- “Personal Information” means information about an identifiable individual or other information that is subject to any Privacy Laws.
- “Privacy Laws” means any current, amended or future federal, provincial or other applicable statute, law or regulation of any governmental or regulatory authority in Canada relating to the collection, use, storage and/or disclosure of information about an identifiable individual, including the Personal Information and Protection of Electronic Documents Act (Canada).
- “Publishing Customer” means a Customer that licenses Materials to Syndication Customers through ScribbleLive pursuant to this Agreement. A Publishing Customer may be an Enterprise Account Customer or a Basic Account Customer. References in this Agreement to a Publishing Customer mean, when used in reference to a person who is both a Publishing Customer and a Syndication Customer, that person in their capacity as a Publishing Customer.
- “Receiving Party” means a party to this Agreement that receives Confidential Information from a Disclosing Party or its Representative.
- “Representative” means any authorized representative of a party.
- “Selected Materials” means the Materials that an Enterprise Account Customer from time to time elects to license to Syndication Customers through ScribbleLive.
- “Service Plan Description” means the information describing the relevant service plan, any conditions of eligibility or other conditions, The Company’s Fees, and payments payable to Publishing Customers, in each case that are published from time to time on The Company’s web site.
- “Services” means the services provided by The Company to Customer under this Agreement, including providing access to ScribbleLive, the operation and management of ScribbleLive, and any development, support or training services described in this Agreement.
- “Service Level Commitment” means a service level commitment to Customer by The Company contained in Article 10.
- “Story” means an instance of a live event or story published by Customer on the Internet using ScribbleLive.
- “Syndication Customer” means a Customer that licenses Materials from Publishing Customers through ScribbleLive pursuant to this Agreement. References in this Agreement to a Syndication Customer mean, when used in reference to a person who is both a Syndication Customer and a Publishing Customer, that person in their capacity as a Syndication Customer.
- “Technology” means all information technology, including ScribbleLive and all other applications developed or provided by The Company or its suppliers at any time in relation to the Services. Technology does not include the Materials.
- “Term” means the period beginning on the date The Company begins providing Services to Customer hereunder and ending upon the termination of the Agreement in accordance with its terms
- “Website Users” mean persons, other than Customer or its authorized representatives, who visit, view or contribute comments to a Story, and when used in reference to a Customer, means persons, other than the Customer or its authorized representatives, who visit or view a Story through the Customer or its website.
- “Website User Materials” means any images, text or other content or media published by a Website User on a Story.
2 THE SERVICES
- Promptly after The Company accepts Customer’s subscription for Services, The Company will (i) make ScribbleLive available to Customer for publishing and/or syndicating Stories, as the case may be, and (ii) provide the Services to Customer, all in accordance with this Agreement. The Services are for the use of Customer only, and may not be resold, leased, sublicensed or otherwise transferred or made available to or for the benefit of any other person.
- Unless otherwise specified in the Order Form, Customer’s use of ScribbleLive is restricted to display content within a single web domain, and Customer may not use ScribbleLive on any subdomain that represents itself as a separate domain or is operated for the benefit of a third party.
- The Company will, as soon as reasonably possible after a request from a Publishing Customer, discontinue access through the Publishing Customer’s instance of ScribbleLive to any Story of the Publishing Customer, or make available to the Publishing Customer the ability to do so itself. For greater certainty, The Company is not obliged to remove from any Syndication Customer’s instance of ScribbleLive any Story that has at the relevant time already been syndicated through ScribbleLive.
- The Company will maintain and update the security of ScribbleLive in accordance with generally accepted information technology practices, and, without limiting the foregoing, will adhere to the security standards set out in Article 11. The Company will notify Customer of any breach of such security affecting the Customer’s data or account within 24 hours of learning of the breach. The Company will use reasonable precautions to monitor ScribbleLive systems for possible and actual infections by computer viruses, worms and other malicious software and will take all reasonable precautions to prevent such infections. Customers are responsible for ensuring that their staff, authorized users or Web Site Users comply with Scribbles Acceptable Use policies and will immediately advise Scribble of any violation thereof.
- The Company will use reasonable efforts to achieve the Service Level Commitments throughout the Term of this Agreement.
- Use of ScribbleLive by Customer and by Website Users shall be subject to the Acceptable Use Policy. The Company shall have the right to suspend Services upon any non-compliance with the Acceptable Use Policy. The Company shall give Customer at least sixty (30) days prior notice of any changes to the Acceptable Use Policy.
- Any storage allowance restricting Customer’s use of ScribbleLive is set out in the Order Form or Service Plan Description. If the amount of disk storage required exceeds this allowance, The Company will in the next succeeding month have the right to charge Customer the applicable excess storage Fees.
- The Company will provide Customer with username and password-protected access to a dashboard that will allow Customer to manage its use of ScribbleLive. Customer is responsible for the security of its username and password, and is responsible for all use of ScribbleLive effected through its username and password. Customer will notify The Company in the event the security of its username and password are compromised.
- The Company has the right to refuse, for any reason or for no reason, any request for a subscription to its Services. The Company has the right to restrict Customer eligibility for particular service offerings, and the sole discretion to determine the eligibility or continuing eligibility of any Customer for any particular service offering.
- The Company may from time to time in its discretion accept requests from Customer for upgrades, additions or amendments to Customer’s Services by email or other communication, and upon acceptance in writing of such requests by The Company such upgrades, additions or amendments shall be deemed to be an amendment to the applicable Order Form.
- The Company provides access to Tweets from Twitter via our API. If you access Tweets using the Company’s API, you agree to abide by Twitter’s Display Requirements for the publication of Tweets and all applicable terms of service and guidelines.
3 SCRIBBLE’S FEES
- 3.1 Subject to any applicable Order Form, The Company’s Fees to Customer are set forth in the Service Plan Description. In consideration of the provision of the Services, Customer shall pay to The Company the Fees in accordance with this Agreement.
- 3.2 Customer shall pay all applicable sales and excise taxes, including HST if applicable, on the Fees.
- 3.3 The Fees applicable to any upgrade, addition or amendment to the Services that is requested by Customer shall be, subject to Section 3.4, the Fees quoted in the Order Form at the time of Customer’s initial subscription for such Services or, if no Fees were so quoted, the Fees published in the Service Plan Description at the time of the request or, if none were so published, The Company’s Fees therefor that are generally applicable at the time of the request. Customer shall pay any additional Fees for services requested by Customer, including but not limited to additional features, sites, skins, seats, modules or professional services, in accordance with The Company’s published rates or rates specifically quoted at the time of any upgrade or project.
- 3.4 Fees may increase upon the anniversary of this Agreement, with 30 days prior written notice. Unless specified otherwise in the Order Form, Fees are calculated monthly in advance.
- 3.5 Customer shall not be entitled to any refund of Fees upon any cancellation or termination of Services or upon the termination of any license hereunder from or to Customer in respect of Materials.
- 3.6 The Company shall invoice Customer for Fees monthly. Fees shall be payable monthly in advance of the use of the Services.
- 3.7 In the event that any Fees remain unpaid more than thirty (30) days after the due date, in addition to any other remedies it might have under this Agreement or in law, The Company has the right on notice to Customer to (i) immediately discontinue providing the Services, and/or (ii) alter the Fees and billing under this Agreement should Customer wish to continue receiving the Services.
4 SYNDICATION OF MATERIALS
4.1 By using ScribbleLive to publish Materials:
- Each Enterprise Account Customer licenses only Selected Materials to each Syndication Customer that elects through ScribbleLive to syndicate those Materials in accordance with this Agreement,
- Each Basic Account Customer licenses all published Materials to each Syndication Customer that elects through ScribbleLive to syndicate those Materials in accordance with this Agreement,
- Each Publishing Customer waives and agrees not to enforce against The Company or any other Customer any moral rights, other than any rights of attribution (and in respect of which Customer agrees that the attribution automatically effected by ScribbleLive shall be sufficient), in Materials published through ScribbleLive, and
- the licenses in this Section are directly between the applicable Publishing Customer and the applicable Syndication Customer and arise automatically upon publication through ScribbleLive of the relevant Materials or Selected Materials as the case may be.
4.2 The licenses set forth in Section 4.1 grant the Syndication Customer:
- the non-exclusive, royalty-free (except for amounts due under this Agreement), non-transferable, non-sublicensable, right to reproduce, copy, publicly perform, publicly display, publish, reformat, translate, excerpt (in whole or in part), edit and incorporate into other works the applicable Materials,
- in the manner permitted by ScribbleLive from time to time,
- through the Syndication Customer’s use of the Services in accordance with this Agreement and with the Acceptable Use Policy,
- during the Term of this Agreement.
4.3 In addition to the other licenses granted in this Section 4, Publishing Customers also non-exclusively license to The Company for the Term of this Agreement all rights in the Materials necessary to use the Materials to the extent necessary to deliver the Services and give effect to the other licenses set forth in this Section 4.
4.4 All licenses granted by a Publishing Customer under Sections 4.1 and 4.2 shall survive any termination of this Agreement between The Company and the Publishing Customer, provided that any license granted in Sections 4.1 and 4.2 shall terminate with respect to a Syndication Customer automatically upon the termination of this Agreement between The Company and the Syndication Customer.
4.5 By licensing Materials under this Agreement,
- Publishing Customers represent, warrant and covenant that they have all rights to their Materials necessary to grant the licenses granted in this Agreement, that such Materials do not breach any duty toward or rights of any person including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under tort law or under any contract, and that their Materials will at all times comply with this Agreement and the Acceptable Use Policy, and
- Syndication Customers represent, warrant and covenant that their use of the Materials will at all times comply with this Agreement and the Acceptable Use Policy.
4.6 The Company has no obligation to permit any Materials to be published using ScribbleLive, and has the right to, in its sole discretion, for any reason or for no reason, remove Materials from ScribbleLive or suspend access to such Materials pending any investigation by The Company. Any such removal or suspension of Materials shall automatically terminate or suspend, as the case may be, any license thereto granted under Sections 4.1 and 4.2.
5 PAYMENT FOR MATERIALS
5.1 Publishing Customers shall not be entitled to any compensation or other payment from The Company for any Materials unless such compensation or payment is expressly set forth in this Agreement. The Company shall have no liability for any payment to any Website User for rights to Materials or otherwise.
5.2 In consideration of the licenses granted under Section 4, and subject to its compliance with this Agreement, each Publishing Customer shall receive from The Company payment(s) related to the number of valid publications by Syndication Customers of such Publishing Customer’s Materials through ScribbleLive in accordance with this Agreement. Payments shall be calculated using the rates set forth in the Services Plan Description at the time the Materials are published by Syndication Customers. The Company shall make such payments within approximately thirty (30) days after the later of the (i) the end of each calendar month in which a Syndication Customer publishes the applicable Materials, and (ii) the end of the each calendar month in which such Syndication Customer makes payment for such syndication, provided that the Publishing Customer’s earned balance is US $100 or more. In addition, in the event The Company issues any refund or credit to a Syndication Customer in respect of Materials, The Company shall be entitled to payment, within thirty (30) days of notice, of the applicable refund from the applicable Publishing Customer(s) or to apply such refund to any future payment(s) due hereunder to such Publishing Customer(s). In the event this Agreement is terminated, The Company shall pay a Publishing Customer’s earned balance to it within approximately ninety (90) days after the end of the calendar month in which the Agreement is terminated, and the Publishing Customer shall not after such termination be entitled to any further payment for the syndication of Materials that were first syndicated through ScribbleLive before such termination. In no event, however, shall The Company make payments for any earned balance less than US $10. Payments shall be made by cheque mailed by regular post to the address provided by Customer in its account registration information provided on subscription for the Services, or in such other manner as The Company may from time to time determine to use.
5.3 Notwithstanding the foregoing, The Company shall not be liable for any payment based on: (a) publication of Materials other than through ScribbleLive in accordance with this Agreement and the Acceptable Use Policy, (b) Materials that do not comply or the publication of Materials that does not comply with this Agreement or the Acceptable Use Policy, (c) Materials that are removed from the Service by The Company, whether after a demand by the applicable Publishing Customer or any third party, or for any other reason, or (d) Materials of a Publishing Customer, in respect of the period after this Agreement is terminated in relation to the Publishing Customer. The Company reserves the right to withhold payment or charge back to a Customer’s account due to any of the foregoing or any breach of this Agreement by Customer, pending The Company’s reasonable investigation of any of the foregoing or any breach of this Agreement by Customer. In addition, if Customer is past due on any payment to The Company in connection with any Services, The Company reserves the right to withhold payment until all outstanding payments have been made by Customer or to offset amounts owed to Customer in connection with the Services by amounts owed by Customer to The Company.
5.4 The Company shall be entitled to permit news organizations (as determined by The Company in good faith) to use Materials, in accordance with this Agreement, without payment to The Company, either for a limited period of time, or for any period of time. The Company shall not be liable for any payment based on publication of Materials by such news organizations in such circumstances.
5.5 To ensure proper payment, Customer is solely responsible for providing and maintaining accurate address and other contact information as well as payment information associated with its account. For U.S. taxpayers, this information includes without limitation a valid U.S. tax identification number and a fully-completed Form W-9. For non-U.S. taxpayers, this information includes without limitation either a signed certification acceptable to The Company that the taxpayer does not have U.S. activities or a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities. For Canadian taxpayers, this information includes without limitation a valid GST/HST # or a signed declaration that Customer does not have sufficient taxable sales to require registration for GST/HST.
5.6 Customer shall pay all applicable taxes, charges or other fees or duties imposed by any government entity in connection with amounts received by it from The Company in connection with the Services. If Customer disputes any payment made to it hereunder, Customer must notify The Company in writing within thirty (30) days of any such payment; failure to so notify The Company shall result in the waiver by Customer of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by The Company. No other measurements or statistics of any kind shall be accepted by The Company or have any effect under this Agreement. The payments made under this Agreement are for use by Customer only and may not be transferred or in any manner passed on to any third party unless expressly authorized in writing by The Company. From time to time The Company may be holding funds, payments and other amounts due to Customer in connection with the Services. Customer acknowledges and agrees that The Company may, without further notice to Customer and subject to applicable law, contribute to a charitable organization selected by The Company all funds, payments and other amounts related to the Services that are held by The Company and that are due to Customer (if any), but which The Company is unable to pay or deliver to Customer because Customer’s ScribbleLive account is Inactive (as defined below). “Inactive” means that, based on The Company’s records: (a) for a period of two (2) years or more Customer has not logged into its ScribbleLive account or accepted funds, payments or other amounts that The Company has attempted to pay or deliver to Customer, and (b) The Company has been unable to reach Customer, or has not received adequate payment instructions from Customer, after contacting Customer by email at the email address provided by Customer in connection with its subscription for Services.
6 CERTAIN INTELLECTUAL PROPERTY MATTERS
6.1 The Company does not own the Materials, has no intellectual property rights in the Materials except for the right under this Agreement to publish them using The Company, and has no responsibility for the Materials or for any loss or damage they cause, or for any use of the Materials by any other person. All rights in the Materials that are not licensed under this Agreement are reserved by the owner.
6.2 The Company owns and shall own all intellectual property rights in the Technology, including its look and feel, the database designs, the architecture of all information technology included in it, and any elements of such technology that are intrinsic to the Technology. Customer will not acquire any right, title, or interest in or to the Technology except as expressly set forth in this Agreement. Customer will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Technology or any Services, or create or attempt to create a substitute or similar service or product through use of or access to the Services or proprietary information related thereto. Customer will not remove, obscure, or alter The Company’s copyright notices or other proprietary rights notices affixed to or contained within any Services or Materials.
6.3 The Company hereby grants to Customer a non-exclusive license for the Term to access and use The Company to publish and/or syndicate Stories and to do all things necessarily incidental to those uses as contemplated in this Agreement. This license includes the right during the Term to invite Website Users to visit Stories, contribute Website User Materials to Stories and to do all things necessarily incidental to that use as contemplated in this Agreement.
6.4 The Company may insert a legend in the footer on any page of a Story indicating that the Story is being powered by The Company. The Company may insert a hyperlink in that legend to The Company’s own web site. The Company may use Customer’s name and trade-mark in a list of representative clients.
7 DEFAULT AND TERMINATION
7.1 The term of this Agreement will continue indefinitely unless terminated by written notice of at least thirty (30) days prior to the end of the term of the Order Form governing the Services or unless otherwise agreed or amended in the Order Form. For clarity, on the expiry of the initial term set forth in the Order Form, this Agreement shall automatically renew for the same period unless written notice of termination is given at least thirty (30) days prior to such expiry. On the automatic renewal, a new term shall begin for the same duration as the initial term in the Order Form and automatically renew on the same basis as the initial term as outlined herein.
7.2 The following events are a Default by a party where the default is not cured in the relevant cure period:
- a party fails to perform or observe any of its material obligations under this Agreement (other than achievement of Service Level Commitments, governed by Section 7.4) and the failure continues unremedied for 5 days following receipt of a notice of the failure from the other party;
- a party becomes insolvent, commits any act of bankruptcy (as set out in the Bankruptcy and Insolvency Act (Canada)) or makes a proposal under the Companies Creditors Arrangement Act (Canada);
- Customer’s or any Website User’s use of ScribbleLive does not comply with the then applicable Acceptable Use Policy; or
- a party fails to make payment when due to the other party, and such failure continues unremedied for thirty (30) days following receipt of notice of Default from the other party.
7.3 Upon Default, the non-defaulting party may do any or all of the following:
- it may immediately terminate this Agreement by giving notice; and
- it may exercise any of its other rights and remedies provided for hereunder or otherwise available to it at law or in equity.
7.4 If The Company fails to achieve Service Level Commitments in two or more months in any 6 month period, Customer shall have either the right to terminate this Agreement immediately, or may claim a 20% discount on the Fees payable for the months in which the Service Level Commitments were not achieved during such 6 month period. Customer’s remedies are limited to the right of termination or the Fee reduction set out above. Under no circumstances is Customer entitled to greater than a 20% discount of the Fees payable for any month. Customer is not entitled to damages or any other remedy save the foregoing for failure to achieve the Service Level Commitments. Customer must claim any abatement of Fees under this Section within thirty (30) days of the end of the last month in which the claimed service deficiency occurred.
7.5 Upon termination of this Agreement for any reason Customer and Website Users will have no further access to ScribbleLive. Provided that Customer has paid all applicable Fees to the date of termination, The Company will upon termination, at Customer’s request, provide Customer with access to a csv archive of the Customer’s Materials published on ScribbleLive in the 12 months preceding termination.
7.6 Upon termination, each party shall return to the other the other party’s Confidential Information or, upon request, destroy the Confidential Information and all copies and certify in writing that they have been destroyed. All obligations arising prior to termination shall be complied with and any provisions of this Agreement that by their nature operate beyond the termination or expiry of this Agreement shall survive such termination.
8.1 Each party acknowledges that it would be damaging to the other party if its Confidential Information were disclosed to or obtained by third parties. Each party shall make all commercially reasonable efforts during the term of this Agreement and thereafter to prevent the other party’s Confidential Information from being disclosed to or obtained by any person or entity for any purpose except as described in this Agreement. Each party’s efforts will not be less than those that it takes to prevent disclosure of its own Confidential Information. The Receiving Party will be responsible for breaches by its Representatives of this Agreement. Without limiting the generality of the foregoing, The Company will keep confidential all Confidential Information furnished to it or its Representatives and will use such Confidential Information solely for the purpose of providing the Services.
8.2 It is not a breach of Section 8.1 to disclose Confidential Information required to be disclosed by law, judicial or arbitration process or by governmental authorities, provided that the Receiving Party first gives the Disclosing Party reasonable notice of any required disclosure pursuant to such law, order or process and takes all reasonable steps to restrict such disclosure and protect the confidentiality to the extent possible and fully cooperates with the Disclosing Party, in any efforts Disclosing Party may reasonably take to challenge or delay such disclosure.
8.3 The Company shall have no obligation to obtain any consent for the collection, use and disclosure of Personal Information published by any other person on a Story, and its storage and processing by The Company in accordance with this Agreement.
8.4 Each party acknowledges and agrees that:
- the restrictions set forth in this Article 8 are reasonable in the circumstances and the Receiving Party waives all defenses to the strict enforcement of the restrictions;
- a violation of any of the provisions of this Article 8 will result in immediate and irreparable harm and damage to the Disclosing Party; and
- in the event of any violation of any provision of this Article 8, the Disclosing Party shall be entitled to apply for equitable relief by way of temporary or permanent injunction and to such other relief as any court of competent jurisdiction may deem just and proper.
9 WARRANTIES, LIMITATIONS OF LIABILITY AND INDEMNITIES
9.1 Except as specifically set forth in these Terms and Conditions: (i) The Company makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Services or any Materials, (ii) The Company does not represent or warrant that (a) the use of the Services will be uninterrupted or error-free or operate in combination with any other hardware, software, services,system or data, (b) the Services or any Materials will meet the requirements or expectations of Customer or Website Users, (c) any stored data will be accurate or reliable, (d) all errors or defects will be corrected, or (e) the Services, the Materials or the server(s) that make the Services available are free of viruses or other harmful components; and (iii) all conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantable quality, merchantability, fitness for a particular use or purpose, or non-infringement of third party intellectual property rights, are disclaimed by The Company to the maximum extent permitted by applicable law.
9.2 The Company shall not have any responsibility for the accuracy, quality, integrity, legality, reliability or appropriateness of the Materials, or for obtaining rights to use or title to any Materials, or for any loss or damage they cause. The Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss of any Materials caused by any Customer or any Website User, for their failure to store any Materials, or for their misuse of the Technology.
9.3 Except for direct damages neither party shall be liable to the other for any damages whatsoever (including without limitation loss of profits or other economic loss, or any indirect, exemplary, incidental, special or consequential damages, even if it has been advised of the possibility of such damages). The Company’s aggregate liability to Customer for direct damages under this Agreement shall not exceed (i) in the case of Syndication Customers, the total Fees paid by Customer to The Company for Services in the 12 months immediately preceding the event which caused the damage or injury, and (ii) in the case of Publishing Customers, the total payments made by The Company to Customer under this Agreement in the 12 months immediately preceding the event which caused the damage or injury. The exclusions and limitations in this Section 9.3 shall apply regardless of whether any action is brought in contract or in tort, (including breach of warranty, negligence and strict liability), or fundamental breach and/or failure of essential purpose of this Agreement or of any remedy contained herein and shall survive the expiration, termination or repudiation of this Agreement, but shall not apply to indemnification under this Agreement, to breaches of Section 8, or to fraud, deliberately wrongful conduct, or gross negligence.
9.4 The Company shall defend or settle at its own expense any and all suits, actions or claims against Customer alleging that any part of the Technology infringes any trade-mark, industrial design, patent, trade secret or copyright in Canada or the United States of America, provided that The Company is notified promptly in writing of such claim, has the exclusive right to control such defense or settlement and, at its request and expense, is given authority and assistance by Customer reasonably required for such defense. The Company will pay any settlement amount, or any damages and costs finally awarded, in any such suit, action, or claim. If any part of the Technology is, or in The Company’s opinion is likely to become, the subject of such a suit, action or claim, The Company at its option may: (i) and at no expense to Customer obtain for Customer from all persons who claim an interest in the Technology, the right to allow Customer to use it as contemplated by this Agreement; or (ii) and at no expense to Customer substitute non-infringing equivalent technology; or (iii) terminate this Agreement. Nothing in this Section shall require The Company to indemnify Customer for any matter arising from any of: (i) any modifications made by Customer; (ii) any Default by Customer; (iii) the combination of the Technology by Customer with other software, equipment, systems or process; (iv) the Materials or any other content or intellectual property provided by Customer or a Website User, or any use thereof by any person; (v) any act or omission of any Website User; or (vi) any use by Customer of the Technology other than in accordance with this Agreement.
9.5 Customer shall indemnify, defend and hold The Company, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. other Customers, licensors, licensees, consultants and contractors) (collectively “Indemnified Person(s)”) harmless from and against any and all third party claims, liabilities, losses, and expenses (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from (i) Customer’s use of the Services, (ii) Customer’s Website Users, (iii) Customer’s Materials or Customer’s or its Website Users’ use of the Materials of any other person, or (iv) Customer’s breach of this Agreement or the Acceptable Use Policy.
10 SERVICE LEVEL COMMITMENTS
10.1 The Company will ensure that its servers and other information technology systems under its control that allow access to Stories are operating at a rate of 99.9 percent of potential uptime each calendar month. Potential uptime is the number of hours in a particular calendar month less planned maintenance time. The Company will use reasonable efforts to minimize planned maintenance time, and will provide not less than 24 hours prior notice of planned maintenance time.
10.2 Unless Customer subscribes for additional support Services, The Company will provide reasonable help desk response to Customer by email during regular business hours (Toronto time), and Customer will be responsible for any end user support, including to Website Users.
11 SECURITY STANDARDS
11.1 ScribbleLive is protected by 256 bit SSL security certificates for data encryption, network firewalls and anti-virus; User activity is restricted to ensure that behavior is within acceptable parameters of application use. Any users exhibiting suspicious behavior are identified, removed and permanently blocked
11.2 The Company understands the importance of implementing effective security measures and will, on an ongoing basis, evaluate security issues with respect to the servers and The Company and use appropriate customary practices in the IT industry to address them promptly.
12.1 Neither party shall be liable to the other for any delay or failure to perform due to fire, flood, earthquake, acts of God, acts of war, riots, civil disorder, strikes, lock-outs or labor disruptions, the failure of telecommunications systems (without limiting the obligations of The Company in respect of disaster recovery set out in Article 11) or any other cause whether similar or dissimilar beyond its reasonable control (a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance of those of its obligations pursuant to this Agreement affected by the Force Majeure Event only for so long as such Force Majeure Event continues and such party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay.
12.2 Customer may not assign this Agreement or its rights and obligations hereunder except with the prior written approval of The Company, provided that Customer may assign its rights under this Agreement to an affiliate or upon sale of all or substantially all of the assets of Customer.
12.3 Notices and other communications required or permitted under this Agreement shall be sent by email. The Company’s email address for notice purposes is the support email address provided on the The Company web site. Customer’s email address for notice purposes is the email address provided by Customer in its account registration information provided on subscription for the Services. Customer may change its email address for purposes of this Section by updating it in Customer’s dashboard area of the The Company website. A communication shall be deemed to have been received as of the next business day following its transmission by email if transmitted on a business day after 4 p.m. Eastern Time or upon a day that is not a business day.
12.4 Except as expressly set out herein, nothing contained in this Agreement shall create or imply any agency relationship between the parties, nor shall this Agreement be deemed to constitute a joint venture or partnership between the parties.
12.5 No amendment to these Terms and Conditions or to any Order Form shall be effective unless The Company has given prior written approval thereto. Subject to Section 3.4, The Company may amend these Terms and Conditions and the Service Plan Description, including any pricing set forth thereon, by giving Customer at least sixty (60) days notice prior to the effective date of the amendment. Any amendment shall be effective from and after such effective date.
12.6 In the event of any conflict or inconsistency between an Order Form, and a Service Plan Description or these Terms and Conditions, the Order Form shall prevail. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which they are invalid or unenforceable, shall not be affected, and each such provision shall be valid and enforceable to the extent granted by law. This Agreement constitutes the entire agreement between the parties relating to the Services.
12.7 This Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. The courts situate in the City of Toronto shall have exclusive jurisdiction over all disputes. The parties agree that jurisdiction and venue in such courts is appropriate and each irrevocably attorns to the jurisdiction of such courts.