Terms of Service | Unleashd Technologies

Last Updated June 24, 2024

THESE TERMS OF SERVICE (THIS “AGREEMENT”) GOVERN CUSTOMER’S SUBSCRIPTION TO AND USE OF UNLEASHD TECHNOLOGIES LTD. (“UNLEASHD”) SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. BY: (1) CLICKING A BOX OR OTHERWISE INDICATING ACCEPTANCE OF THIS AGREEMENT, TOGETHER WITH ALL DOCUMENTS INCORPORATED BY REFERENCE; (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR (3) USING ANY OF UNLEASHD’S PRODUCTS OR SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT (the “Acceptance”).

This Agreement was last updated on June 24, 2024. It is effective between the Customer and Unleashd as of the date of Customer’s Acceptance (the “Effective Date”).

1. INTERPRETATION AND DEFINITIONS

1.1

Unless otherwise defined elsewhere in this Agreement, the following terms shall have the meaning assigned to them in this Section 1:

“Affiliate” means with respect to either Party, such Party and any other entity that, directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, that Party. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of an entity, whether through ownership of more than 50% of the equity or voting rights in such entity.

“Aggregate Data” means Anonymous Data, along with Customer Data and data derived from compiling, combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other customers, clients, licenses or users of the Technology, Products or Services, or otherwise to permit Unleashd to provide the Products and Services.

“Anonymous Data” means the anonymous statistical and usage data related to the Technology that is derived from the anonymization and aggregation of Customer Data.

“Authorized Users” means those employees, agents and independent contractors of Customer, and its Affiliates who are authorized by the Customer to use the Technology in accordance with the Order Form.

“Confidential Information” means all such information, material and data of the disclosing Party which: (i) is labeled or designated in writing as confidential or proprietary, (ii) the receiving Party is advised is proprietary or confidential, or (iii) in view of the nature of such information and/or the circumstances of its disclosure, the receiving Party knows or reasonably should know is confidential or proprietary relating to either party or such party’s Affiliates, and shall include the following information: financial data, plans, forecasts, intellectual property, methodologies, algorithms, agreements, market intelligence, technical concepts, customer information, strategic analyses and publications.

“Customer Data” means any information that is held, used, or provided to Unleashd by the Customer in the course of Customer’s use of the Products and Services, including any information derived from such information.

“Documents” means the body of this Agreement together with any Order Form(s) and documents located at the electronic links identified below and which are incorporated by reference into this Agreement and may be updated from time to time:

Document Name

Data Processing Addendum

Hyperlink

https://www.unleashd.ca/en/dpa

https://www.unleashd.ca/en/privacy

Document Name

Data Processing Addendum

Hyperlink

https://www.unleashd.ca/dpa

Document Name

Hyperlink

https://www.unleashd.ca/privacy

“Intellectual Property Rights” means all intellectual property rights of any nature whether registered, registrable or otherwise, including patents, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how, show how and any other intellectual property rights in the Products and Services, workflow processes, user interface, designs, and other technologies.

“Materials” means any information or Intellectual Property of either Party reduced to written or recorded form on whatever medium and in whatever form and provided to the other Party for the purposes of Unleashd providing the Products and Services.

“Order Form” means any ordering document, online order, or accepted quote for the delivery of Unleashd Products and Services.

“Party” means each of Unleashd and the Customer, and “Parties” means both of them together.

“Products and Services” means the products and services that are ordered by the Customer under an Order Form or online purchasing portal.

“Subscription Start Date” means the date on which the Customer commences use of the Products and Services, provided that testing for compliance or implementation shall not trigger a Subscription Start Date.

“Taxes” means any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction.

“Technology” means any proprietary technology and products developed, or which may be offered for subscription, by Unleashd, from time to time forming part, or being in support, of the Products and Services.

1.2

In the event of any conflict or inconsistency between any of the provisions of this Agreement and any of the schedules, or other related documents, the provisions of the schedules shall take precedence first, followed by the provisions of this Agreement.

2. UNLEASHD PRODUCTS AND SERVICES

2.1

This Agreement sets out the general terms for the provision of the Products and Services. During the Term (as defined in section 4.1 herein), the Customer may engage Unleashd to provide any of the Products and Services either alone, or in combination with any of the other Products and Services offered by Unleashd, provided the Customer executes an Order Form.

2.2

Unleashd will provide the Products and Services in a timely manner, provided that the Customer promptly provides all Customer Data, information, logos and other Materials requested by Unleashd and actively cooperates with Unleashd during the Term. The Customer acknowledges that the timeliness and completeness of such information and Customer Data provided to Unleashd, may directly affect the outcome or ability to provide the Products and Services and Unleashd shall in no way be responsible for any such delays caused by Customer. Customer acknowledges and agrees that it shall use best efforts to cooperate with Unleashd and shall not cause any unreasonable delay in the commencement of the onboarding.

3. FEES AND INVOICING

3.1

The price for any of the Products and Services is set out in the applicable Order Form, and the Customer shall make timely payment of any amounts owing as set out in this Agreement.

3.2

The Customer must provide to Unleashd valid, current and complete contact and billing details and must forthwith notify Unleashd of any changes to such details. Any costs related to unsuccessful billing attempts by Unleashd due to outdated billing information shall be borne by the Customer.

3.3

Data integration fees will be invoiced upon Acceptance of this Agreement by the Customer. The first invoice for monthly subscription services will be rendered on the Subscription Start Date for the full monthly subscription amount without proration. Subsequent invoices will be issued to and paid by the Customer on the first day of each month, by way of either electronic funds transfer or Pre-Authorized Credit Card (“PACC”). Customer authorizes Unleashd to charge by PACC for all subscription services for the initial subscription term and any renewal term(s) as set forth in the Order Form. Unless otherwise stated in the Order Form, invoiced fees are due and payable on the invoice date.

3.4

The invoiced amounts must be paid in full, without any set-off, and, once paid, are non-refundable, except as set out in this Agreement or the applicable Order Form. All payments must be made in the currency stated on the invoice. Where the Order Form does not quantify the fees, any Products and Services, including any additional services performed outside of the scope of the Order Form, after Acceptance of this Agreement by Customer, will be charged on a time and materials basis at the standard rate of $150.00 per hour. Any third party data processing fees incurred relating directly to the provision of any Products and Services hereunder shall be charged to the Customer.

3.5

If the Customer wishes to request a subscription hold, the following shall apply:

the Customer shall request a subscription hold at least one (1) month prior to its start date;

a subscription hold may not commence prior to expiration of the initial subscription term;

A subscription hold may not exceed three (3) months from the hold start date;

the delivery by Unleashd of the Products and Services may resume at any time during the subscription hold period, and regular invoicing as well as the terms of this Agreement shall recommence as of that date, provided that any invoicing shall be for the full month in which Services resume, without pro ration;

during the subscription hold, and on providing at least fifteen (15) days prior written notice of cancellation, the Customer may fully terminate this Agreement and any delivery of Products and Services hereunder.

3.6

If any amounts are not received by Unleashd thirty (30) days following the invoice date (unless they are subject to a good faith dispute), then, unless otherwise stated in the specific invoice, such amounts shall accrue late interest at the rate of 18% per annum, calculated monthly, for an effective annual rate of 19.56% of the outstanding balance, or the maximum rate permitted by law (whichever is lesser), from the date the payment was due until the date paid. Unleashd may, without limiting its other rights and remedies, suspend the Customer’s access to the Unleashd Products and Services, in whole or in part, until such amounts are paid in full or terminate the Products and Services without further notice.

3.7

Unless otherwise stated, fees do not include any Taxes. The Customer is responsible for paying all Taxes associated with the Products and Services. If Unleashd has the obligation to pay or collect any Taxes associated with the Products and Services for which the Customer is responsible, then the appropriate amount shall be included in the invoice and the Customer agrees to pay such amount.

4. TERM AND TERMINATION

4.1

The term of this Agreement starts on the Effective Date and ends when all Order Forms hereunder have expired or have been terminated in accordance with this Agreement.

4.2

The term of each subscription shall be specified in the applicable Order Form, and unless otherwise specified, shall be one (1) month and shall automatically renew for additional one (1) month terms. Unless the Customer has notified Unleashd in writing at least one (1) month prior the expiry of the relevant subscription term, subscriptions will automatically renew for additional one (1) month terms and on the same terms and conditions, except that the fees payable for the Products and Services may be revised. Cancellation of additional Products or Services (“Add-Ons”) requires at least seven (7) days written notice prior to expiry of the relevant subscription term.

4.3

If either Party fails to perform or otherwise materially breaches any of its obligations under this Agreement, the non-breaching Party shall have the right to terminate this Agreement immediately upon fourteen (14) days written notice to the breaching Party, and this notice shall automatically become effective unless the breaching Party completely remedies the breach to non- breaching Party’s satisfaction within such fourteen (14) day period. In the event of the Customer’s failure to pay the fees due and payable to Unleashd hereunder, Unleashd may terminate this Agreement immediately upon written notice to the Customer.

4.4

This Agreement shall terminate forthwith in the event of: (i) an order being made or resolution passed or a petition or court application is made for the winding up, dissolution, liquidation or bankruptcy of either Party (otherwise than for the purpose of reconstructing or amalgamation); or (ii) if a receiver is appointed, or if it suspends payment generally, ceases to carry on business or make any special arrangement or compositions with its creditors.

4.5

Termination of this Agreement is without prejudice to any rights or obligations accrued by either Party up to and including the date of termination. For greater certainty, a termination of this Agreement also terminates any active Order Forms.

4.6

Upon termination of this Agreement for any reason:

unless otherwise agreed by the Parties in writing, the Products and Services to be provided by Unleashd under an active Order Form will cease to be deliverable as of the termination date;

all Customer licenses to use the Products and Services will be terminated;

Anytime after Acceptance of this Agreement by Customer, Customer shall pay to Unleashd all fees or other amounts due and payable for the duration of the subscription term within ten (10) days of the effective date of such termination;

all Confidential Information to the extent it is in a format that may be returned, other than Customer Data, must be returned to both Parties; and

Unleashd will return or destroy Customer Data within thirty (30) days, in accordance with the Data Processing Addendum.

5. CONFIDENTIALITY

5.1

The Parties may exchange Confidential Information in the course of negotiation for the procurement and the use of the Products and Services. Each Party shall keep confidential and shall not use or disclose any Confidential Information of the other Party to anyone, other than the Party’s officers, directors, employees or representatives who: (a) have a "need to know"; and (b) have been advised of the confidential and proprietary nature of the Confidential Information. The confidentiality obligations herein shall not apply to any such information (a) which is or becomes publicly known without any fault of or participation by the receiving Party, (b) was in the receiving Party's possession prior to the time it was received from the disclosing Party or came into the receiving Party’s possession thereafter, but only if in each case it is lawfully obtained from a source other than the disclosing Party and not subject to any obligation of confidentiality or restriction on use, (c) is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the receiving Party shall notify the disclosing Party of the requirement of disclosure before making such disclosure, if allowed by applicable law, and shall comply with any protective order or other limitation on disclosure obtained by the disclosing Party; or (d) is independently developed by the receiving Party by persons not having exposure to disclosing Party's Confidential Information.

5.2

The receiving Party will protect all Confidential Information by using the same degree of care regarding the Confidential Information that the receiving Party would exercise regarding its own confidential information, but not less than reasonable care. Confidential Information shall remain the exclusive property of the disclosing Party and no patent, copyright, trademark or other proprietary right is licensed, granted or otherwise transferred by this section or any disclosure of Confidential Information to the receiving Party.

5.3

Each Party acknowledges that its breach of this section will irreparably harm the other party, and that such harm will not be susceptible to accurate measurement for the purpose of calculating money damages. Accordingly, the non-breaching Party, in addition to seeking and recovering money damages and other remedies available at law, will have the right to obtain an injunction or other equitable relief to prevent a breach or threatened breach, without the necessity of posting a bond or other security.

5.4

Subject to the other terms and conditions in this Agreement, upon termination of this Agreement for any reason, each party shall return to the other Party or destroy all copies of the Confidential Information disclosed to it by the other Party. The receiving Party may retain any Confidential Information that (a) it is required to keep for compliance purposes under a document retention policy or as required by a court or regulatory agency or by applicable law, rules, regulations or professional standards; or (b) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security or disaster recovery systems or procedures.

5.5

Any data collected by Unleashd for monitoring usage and performance of the Technology by the Customer will not be considered Confidential Information and shall only be utilized for the legitimate interest of delivering and making improvements to the Technology, Products and Services.

5.6

Subject to the limited marketing consent by the Customer set out in Section 5.6 below, neither Party shall make any public announcement concerning this Agreement without the prior written consent of the other Party, except as may be required by any Applicable Law, any governmental or regulatory authority or any court of competent jurisdiction.

5.7

The Customer hereby consents to the public announcement (the “Announcement”) of it becoming a welcomed Customer of Unleashd. Solely for purposes of such Announcement, Unleashd may use the Customer’s name, brand, logo and/or trademarks (as provided by the Customer) (the “Customer Name and Marks”), and the Customer specifically agrees that the Announcement may be made through the use of any and all forms of media, including without limitation, social media websites, podcast platforms, webinars, Unleashd websites and any other form of media. With respect to Unleashd engaging in any other marketing or promotional activities, publications, announcements, disclosures, press releases, quotes or testimonials that would require publication or mention of the Customer’s Name and Marks, Unleashd will obtain the Customer’s prior consent.

5.8

The obligation to protect the Confidential Information of the disclosing party arises as soon as the disclosing party has revealed Confidential Information to the receiving party, and it shall remain in place for the duration of this Agreement and any Order Form issued hereunder plus five (5) years after the termination of this Agreement or Order Form.

6. INTELLECTUAL PROPERTY

6.1

Except as expressly provided in this Agreement, nothing in this Agreement grants any rights, titles or interests in the Intellectual Property Rights of either Party in existence as of the Effective Date, and each Party shall remain the exclusive owner of its own Materials. For greater certainty:

Subject to the limited rights expressly granted hereunder, Unleashd reserves all rights, title and interest in and to the Technology, Products and Services and all modifications and improvements to the Technology, Products and Services (including Anonymous Data), plus all related Intellectual Property Rights. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Technology, Products and Services. Customer hereby acknowledges and agrees that Unleashd and/or its licensors own all Intellectual Property Rights in all Materials connected with the Technology, Products and Services; and

The Customer reserves all rights, title and interest in and to the Customer Data, and subject to the limited rights granted by the Customer hereunder, Unleashd acquires no right, title or interest from the Customer under this Agreement in or to the Customer Data or any Intellectual Property Rights therein. The Customer grants Unleashd a limited license to copy, transmit, display, process and modify such Customer Data, solely as necessary for Unleashd to provide the Products and Services to the Customer under this Agreement, as well as to derive Aggregate Data.

6.2

Notwithstanding the provisions of this Section 6, to the extent the Customer provides any suggestion, idea, enhancement requests, recommendations or comments (“Feedback”) to Unleashd, such Feedback will not be considered Confidential Information and Unleashd will have the unrestricted right to use, profit from, disclose, publish or otherwise exploit any Feedback without any compensation to the Customer. The Customer shall have no Intellectual Property Rights or any interest in any developments arising from any Feedback.

7. LIMITATION OF LIABILITY and INDEMNITY

7.1

During the term, Unleashd will devote such resources, time and attention as may be necessary for the proper exercise of Unleashd’s duties hereunder and for the proper performance of Unleashd’s Products and Services described herein or in any Order Form. Unleashd will act in a professional manner and with all due skill, care and knowledge in connection therewith (but not less than the degree of skill, care and knowledge as would be exercised by a prudent provider of services similar to those described herein).

7.2

Unleashd warrants that the Products and Services shall be performed in a professional and competent manner consistent with applicable industry standards.

7.3

Remedy: The Customer’s sole and exclusive remedy with respect to the warranties under this Section will be that Unleashd shall correct the breach of the warranty within a commercially reasonable period, provided that the Customer reports any breach of warranty claims to Unleashd within ten (10) days of the delivery of the related Products and Services.

7.4

GENERAL DISCLAIMER: EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN THIS SECTION, UNLEASHD MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION THAT OPERATION AND ACCESS OF THE TECHNOLOGY WILL BE UNINTERRUPTED, ERROR FREE OR ENTIRELY SECURE, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY OR THOSE ARISING FROM STATUTE OR USAGE OF TRADE.

7.5

Nothing in this Agreement excludes or limits Unleashd’s or Customer’s liability for:

death or personal injury caused by its negligence;

fraud or fraudulent misrepresentation;

gross negligence or wilful misconduct; or

any other liability which cannot lawfully be excluded or limited.

7.6

TO THE EXTENT ALLOWED BY LAW, IN NO EVENT SHALL UNLEASHD HAVE ANY LIABILITY TO THE CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES HOWEVER CAUSED, INCLUDING LOST PROFITS AND REVENUES, DEPLETION OF GOODWILL, OR OTHER COMMERCIAL OR ECONOMIC LOSS, INCLUDING ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION OR INSTRUCTIONS PROVIDED BY THE CUSTOMER IN CONNECTION WITH UNLEASHD’S PERFORMANCE OF THIS AGREEMENT OR ANY ACTION TAKEN BY UNLEASHD AT THE CUSTOMERS’ DIRECTION, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT UNLEASHD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.7

UNLEASHD’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE PRICE PAYABLE FOR PRODUCTS AND SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

7.8

Unleashd will defend, indemnify and hold harmless Customer, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party claims (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly arising from or in connection with: (a) all or any portion of the Products and Services infringing, violating, or misappropriating the intellectual property rights of any third party; (B) Unleashd’s breach of any of Unleashd’s representations or warranties under this Agreement; or (C) Unleashd’s use of or misuse of the Customer Data, provided that this indemnification shall not extend to any indirect, consequential, economic, or business losses or indirect, special, incidental, consequential, exemplary, or punitive damages. Unleashd will pay any final judgment rendered by a court of competent jurisdiction, or settlement agreed to in writing by Unleashd, with respect to such claim. These obligations are contingent upon Customer promptly notifying Unleashd in writing of any claims or threatened claims, Unleashd having sole control over the defense and all negotiations for settlement of any such claim, and Customer giving all reasonable assistance to Unleashd in the defense and settlement of the claim.

7.9

If the Products and Services become, or in Unleashd’s opinion are likely to become, the subject of an infringement claim, Unleashd may, at its option and sole discretion: (A) obtain a license for Customer to continue to use the Products and Services as provided in this Agreement; (B) replace or modify the Products and Services so that they no longer infringe on any third party rights; or (C) if Unleashd determines that neither of the foregoing options are reasonably available, Unleashd may require that Customer cease use of the Products and Services and Unleashd will refund to Customer a prorated portion of the applicable fees paid.

7.10

Unleashd’s obligations under this Section do not apply to any claims (including damages, recoveries, deficiencies, interest, penalties and legal fees) arising from or in connection with any of the following (the “Excluded Claims”): (A) the combination of the Products and Services with any other software, products, equipment, components, process, or material in a manner not authorized by Unleashd; (B) use of the Products and Services in a manner not permitted by or in breach of this Agreement; (C) failure to use replacement or modified services that provides substantially similar functionality to the original Products and Services if the replacement or modified services would have rendered the Products and Services non-infringing; and (D) Unleash’s compliance with Customer’s instructions, specifications, or requirements. No indemnification for any third party products supplied by Unleashd is provided under this Agreement, unless and to the extent such indemnification is provided to Customer under the terms and conditions of Unleashd’s agreement with the licensor of any such third party product.

7.11

Customer will defend, indemnify and hold harmless Unleashd, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party claims (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) the Customer Data; (ii) Customer’s breach of any of Customer’s representations or warranties, or obligations under this Agreement; or (iii) any Excluded Claim. Customer will fully cooperate with Unleashd in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Unleashd.

8. DATA PROTECTION and SECURITY

8.1

Unleashd will maintain administrative, physical and technical safeguards designed for the protection of the security, confidentiality and integrity of the Customer Data, including measures designed to prevent unauthorized access, use, modification or disclosure of the Customer Data by Unleashd personnel, except (i) as required to provide Unleashd’s Products and Services and prevent or address service or technical problems, or (ii) as compelled by law.

8.2

Unleashd shall ensure that it will comply with all applicable laws (including data protection, data privacy and anti-spam laws). For greater certainty, and except as set out in this Section 8.2, Unleashd will not use the Customer Data other than for the specific purpose of providing the Customer with the Products and Services. The Customer consents to the aggregation and analysis of the Customer’s Data by Unleashd which will result in anonymized Aggregate Data. Such Aggregate Data shall be used solely for providing and improving the Technology, Products and Services and developing new Unleashd products and services. Unleashd, both in respect of the provision of its Products and Services and its use of the Aggregate Data, will adhere to its Data Processing Addendum and Privacy Policy which are available at https://www.unleashd.ca/en/dpa and https://www.unleashd.ca/en/privacy, and are incorporated by reference into this Agreement and may be updated from time to time.

9. CUSTOMER DATA and CUSTOMER OBLIGATIONS

9.1

Unleashd hereby grants the Customer, subject to the terms and conditions of this Agreement, a non-exclusive, non-assignable, revocable, non-transferable (except as explicitly provided in this Agreement), right to access and use the Technology, Products and Services subscribed to by the Customer solely for the Customer’s internal business purposes, subject to any specific usage restrictions set forth in this Agreement.

9.2

Except as expressly provided herein, the Customer agrees that it will not itself, and will not permit others to: (i) transfer, sub-license, sell, rent, lend, lease or distribute all or any part of any of the Technology, Products and Services or any of Unleashd’s Intellectual Property Rights or otherwise make such Technology available to others other than the Customer and its Authorized Users; (ii) do anything which could reasonably be expected to damage, disable, overburden, materially impair or undermine the performance and security of the Technology, Products and Services; (iii) store, distribute or transmit any material during the course of use of the Products and Services that is unlawful, harmful, threatening, defamatory, obscene or infringing on copyright or any other Intellectual Property Rights, or in breach of applicable privacy and anti-spam laws; (iv) use the Products and Services for any activity which violates any laws or for any purpose or in any manner not expressly permitted in this Agreement or the applicable Document; (v) decompile, disassemble or reverse-engineer the underlying software or application that is part of the Products and Services or otherwise attempt to derive its source code or create any derivative works of such Technology not authorized by Unleashd; (vi) access such Technology or Products and Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (vii) modify such Technology or Products and Services in any way not authorized by Unleashd; (viii) remove or obscure any proprietary notices or labels on such Technology or Products and Services; or (ix) infect such Technology with viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of such Technology.

9.3

The Customer shall ensure that: (i) the maximum number and type of Authorized Users that will be permitted to use the Technology, and their mode of access shall comply with this Agreement; (ii) the Authorized Users will use the Technology, Products and Services in accordance with the terms and conditions of this Agreement and any applicable Document and only access the Technology, Products and Services using the provided account credentials, passwords or web addresses (URLs); (iii) it maintains the security of the Customer’s account at all times, including but not limited to, keeping any passwords or other account credentials safe and taking precautions to ensure that passwords are changed regularly; (iv) it immediately informs Unleashd if passwords or other credentials are compromised in any way; and (v) it has adequate computing and network resources to make proper use of the Technology, Products and Services.

9.4

The Customer acknowledges that the collection and submission of Customer Data is the sole and exclusive responsibility of the Customer. The Customer acknowledges that, except as set out in this Agreement, Unleashd is not responsible in any way for any intellectual property infringement or the violation of any third party’s rights or laws, including but not limited to infringement or misappropriation of copyright, trademark or other property right of any person or entity, arising from or relating to the Customer Data. In relation to any and all personal data comprised within the Customer Data, the Customer warrants that such personal data shall have been obtained and supplied to Unleashd in compliance with applicable laws, including but not limited to data protection and privacy legislation and the Customer warrants that it has obtained all necessary consents and approvals from users that are necessary to permit Unleashd to provide the Products and Services under this Agreement. Customer further acknowledges and agrees that if the Customer uses any Technology or Products and Services to store, process or transmit any sensitive financial information, including but not limited to any account number, credit or debit card number (with or without any required security code) or password that would permit access to an individual’s financial account, Customer does so at its own risk and sole discretion and Unleashd disclaims any responsibility or liability for any such information or data.

9.5

Unleashd may at any time and from time to time audit or monitor any aspect of the Customer’s or its Authorized Users’ access to, and use of, the Products and Services and Technology to ensure compliance with this Agreement, and the Customer will cooperate with providing assistance reasonably required to facilitate that audit. If the Customer fails to cure any deficiencies within a reasonable time stipulated by Unleashd, Unleashd may immediately and in its sole discretion terminate the Agreement and any active Order Form or suspend access to the Products and Services. If Unleashd discovers any material breach of this Agreement through an audit, the Customer will be liable to pay for the audit and, otherwise, Unleashd shall bear the cost.

10. GENERAL PROVISIONS

10.1

The following provisions shall apply in case of an event of Force Majeure:

“Force Majeure” shall include but is not limited to events that delay the performance of either Party’s obligations under this Agreement or prevent a Party from carrying on its business on account of failures of the internet or any public telecommunications network, failures of the hosting provider, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, pandemics, explosions, fires, floods, riots, terrorist attacks and wars), as well as a significant change in the car industry that directly affects the provision of the Products and Services, but excluding general economic conditions or other general market effects.

If an event of Force Majeure occurs, the Parties shall immediately consult with each other to discuss the timeline of the performance of their respective obligations. If the consequences of Force Majeure continue for a period of more than thirty (30) days either Party may terminate this Agreement.

Upon completion of the event of Force Majeure, the Party affected must, as soon as reasonably practicable, recommence the performance of its obligations under this Agreement. Where the Party affected is Unleashd, Unleashd must provide a revised schedule and timing estimate to minimise the effects of the prevention or delay caused by the event of Force Majeure.

An event of Force Majeure does not relieve a Party from liability for an obligation that arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.

10.2

This Agreement, including the Documents describes the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersedes any prior understandings or agreements. The headings are for convenience only and shall not affect the construction or interpretation of this Agreement.

10.3

Failure or delay by either Party to exercise its right or remedy provided under this Agreement does not mean a waiver of that or any right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.

10.4

If any provision of this Agreement is found to be invalid or unenforceable by a court, then the other provisions of this Agreement shall remain in force and it will be replaced with a provision that achieves the same purpose as the original to the maximum extent possible.

10.5

A person (whether natural, corporate or otherwise) who is not a party to this Agreement may not enforce any of its terms. For the avoidance of doubt, this clause shall not apply to any successors or permitted assigns of the Parties.

10.6

Time is of the essence in this Agreement.

10.7

Any notices, reports or other communications required under this Agreement shall be in writing and shall be sufficient if delivered by hand, courier, mail, or email addressed to Unleashd Technologies Ltd. at 120 - 2677 192 Street, Surrey, British Columbia V3Z 3X1 Attention: Legal; Email: legal@unleashd.ca, or to such other address as the Party shall advise the other Party in writing. Any such notices, reports or other communications shall be deemed to have been received by the Party(s) to whom they were addressed upon delivery by hand, mail, courier, or email, when received.

10.8

A Party will not, without prior written consent from the other Party, such consent not to be unreasonably withheld or delayed, assign, encumber, subcontract or transfer in any other manner all or any of its rights or obligations under this Agreement.

10.9

This Agreement is not intended to and shall not create a partnership between the Customer and Unleashd or authorize either Party to act as an agent for the other and neither Party shall have the authority to in the name or on behalf of or otherwise bind the other in any way.

10.10

This Agreement is governed by the laws of British Columbia and the federal laws of Canada applicable therein. Any dispute arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, which cannot be solved amicably amongst the Parties, shall be referred to and finally resolved by a single arbitrator under the Rules of the ADR Institute of British Columbia; the hearing shall be held in British Columbia.

10.11

Sections 5, 6, 7, 8 and 9 of this Agreement, together with those terms which by their nature survive termination, shall survive termination of this Agreement.

Customers using Reynolds as their DMS must abide by the following additional provisions:

Reynolds DMS Provisions

(the “Reynolds Addendum”)

For the purposes of this Reynolds Addendum, "Reynolds Interface" means processes developed by The Reynolds and Reynolds Company or its affiliates (collectively "Reynolds") (which include, but are not limited to, software, hardware, specifications, security codes, access methods, data transferred into Reynolds system from the Products and Services for purposes other than logging or requesting data, and other intellectual property), that allow for the transfer of data to or from one or more Reynolds systems. The integration of the Reynolds Interface and the Products and Services shall be referred to as the “Reynolds Product” hereunder.

The limited, non-exclusive, non-transferrable, revocable license granted to the Customer by Unleashd Technologies Ltd. (“Unleashd”) to access and use the Products and Services includes the right to operate the Reynolds Interface only with the Products and Services and only for the Client's internal business purposes in accordance with the terms of the Agreement. Subject to such limited license, Reynolds reserves all rights, title and interest in and to the Reynolds Interface.

Customer further agrees not to access or use the Products and Services, including the Reynolds Interface, outside of the definitions and processes provided in the Agreement.

Customer hereby agrees not to: (a) copy, disassemble, decompile, and/or reverse engineering of the Reynolds Interface or Reynolds Product; (b) allow the transfer of or access to the Interfaced Product and the Reynolds Interface to or by third parties; (c) lend, lease, sublicense or pledge the Interfaced Product and the Reynolds Interface; and (d) permit service bureau or outsource uses of the Interfaced Product and Reynolds Interface.

The Reynolds Product and Reynolds Interface contain portions of program code owned by third party licensors and such licensors will be entitled to enforce the license granted under this Reynolds Agreement as an intended third party beneficiary and the obligations of the licensee cannot be modified or terminated without the written consent of such third party licensors. Customer shall not disclose any passwords or other security information that are related to the Reynolds Interface or other software licensed hereunder. ALL LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In no event will any licensor be liable for indirect, incidental, consequential or exemplary damages arising from use, or inability to use Reynolds Interface(s), even if they knew of the possibility of such damages.

All rights to use or maintain possession of the Products and Services, the Interfaced Product and the Reynolds Interface will terminate immediately upon Customer’s breach of any material provision of the Agreement and/or this Reynolds Addendum, including without limitation, Customer’s non-compliance with any applicable privacy laws or regulations.

For the purpose of this Reynolds Addendum, "Client Data" means any data, information or material that the Customer processes, stores, or transmits using the Products and Services, including data of or relating to the Customer's customers. Client Data may contain, and Unleashd and its subcontractors and agents may collect, access and use, the following non-public personal information of the Customer's customers ("Customer NPI"): contact information, vehicle trim levels, finance terms, vehicle purchase and registration information, customer employment information and other information associated to the purchase trade or finance of the customer’s ‘vehicle, and may disclose or allow access to that Customer NPI to or by Unleashd’s affiliates and their respective subcontractors and agents.

The Customer hereby grants Reynolds, Unleashd and its subcontractors and agents permission to access Customer NPI to the extent necessary to provide the Products and Services contracted for under the Agreement (including the Reynolds Interfaces) and, for greater certainty, the Customer specifically permits Reynolds and Unleashd and its subcontractors and agents to provide access to Customer NPI to one another for that purpose. Unleashd will return or destroy any Customer NPI upon the termination of the Agreement.

As part of the Reynolds Interface Reynolds has developed certain processes that allow certain third party software providers, including Unleashd, to receive from Reynolds certain data from your Dealer Management System (“DMS”) and/or allow Unleashd or Unleashd’s agents to send data to your DMS. By agreeing to these terms, Customer is providing Customer’s consent to: (a) Reynolds’ providing Unleashd and Unleashd’s agents with access to data from your DMS; and (b) to Unleashd and Unleashd’s agents providing Reynolds with access to Drive AI data. By agreeing to these terms the Customer represents and agrees that: (a) Reynolds makes no representations, assurances, warranties or guarantees with respect to Unleashd’s Products and Services or Unleashd or its agents' obtaining access to data from the Customer's DMS; (b) Reynolds shall have no liability whatsoever for any damages the Customer may suffer as a result of using Unleashd’s Products and Services or because of Unleashd or its agents' access to data from the Customer's DMS; (c) Reynolds has no responsibility for the activities of Unleashd or Unleashd’s agents with respect to their access to data from the Customer's DMS, including without limitation, with respect to Customer NPI obtained or used by Unleashd or its agents; (d) Reynolds may terminate the integration described in this Reynolds Addendum at any time if Reynolds determines that such integration may conflict with or adversely affect the operation or security of the Customer's DMS (including without limitation the integrity or security of the data) or such access may violate any applicable laws or regulations; (e) problems caused by the data access described in this Reynolds Addendum will not be covered by any software support and equipment maintenance services or fees previously agreed between Unleashd and Reynolds; and (f) Reynolds has the right to enforce its rights under this Reynolds Addendum. NOTICE TO NORTH CAROLINA DEALERS: THIS REYNOLDS ADDENDUM RELATES TO THE TRANSFER AND ACCESSING OF CONFIDENTIAL INFORMATION AND CUSTOMER RELATED DATA.