TERAPEAK SOFTWARE AS A SERVICE (“SAAS”) SUBSCRIPTION AGREEMENT (THE “AGREEMENT”)

Last Updated: 2016-06-20

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING ANY OF THE TERAPEAK SOFTWARE APPLICATIONS AND DOCUMENTATION (COLLECTIVELY THE “PRODUCTS AND SERVICES”). TERAPEAK INC., TERAPEAK (CANADA) INC., TERAPEAK GMBH AND THEIR AFFILIATES AND SUBSIDIARIES  (COLLECTIVELY “TERAPEAK”)  IS WILLING TO LICENSE THE USE OF THE PRODUCTS AND SERVICES TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. CERTAIN PRODUCTS AND SERVICES MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS AND FEE STRUCTURES WHICH WILL BE SPECIFIED IN AN ORDER FORM (EACH AN “ORDER FORM”) AT THE TIME OF SUBSCRIPTION. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY APPLICABLE ORDER FORM, THE ORDER FORM WILL PREVAIL TO THE EXTENT OF SUCH CONFLICT OR INCONSISTENCY.

BY IN ANY WAY ASSENTING ELECTRONICALLY OR USING THE PRODUCTS AND SERVICES YOU AGREE TO COMPLY WITH ALL THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT INCLUDING THE TERAPEAK TERMS AND CONDITIONS OF WEBSITE USE (THE "T’S&C’S"), TERAPEAK REFUND AND CANCELLATION POLICY, ANY APPLICABLE ORDER FORM, ANY MATERIALS AVAILABLE ON THE WEBSITES LOCATED AT TERAPEAK.COM, TERAPEAK.COM.HK, TERAPEAK.FR, TERAPEAK.DE, TERAPEAK.CN, TERAPEAK.JP, TERAPEAK.IT, TERAPEAK.CA, TERAPEAK.CO.UK, TERAPEAK.SG AND THEIR SUBDOMAINS (THE “WEBSITES”) AND THE TERAPEAK PRIVACY POLICY (PRIVACY POLICY), WHICH ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT.

IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE OR ACCESS THE PRODUCTS AND SERVICES.

1. TERMS OF USE.

1.1
Subject to the terms and conditions of this Agreement, Terapeak agrees to provide you, on a SaaS basis, the Products and Services in exchange for the subscription fees (the “Subscription Fees”) agreed to by you and Terapeak or Terapeak’s third party service providers including payment processors (each a “Third Party Service Provider”).
1.2
Terapeak reserves the right to update and change, from time to time, this Agreement and all documents incorporated herein by reference. Terapeak may change this Agreement by posting a new version without notice to you. Use of the Products and Services after any such change constitutes acceptance of such change.
1.3
You represent to Terapeak that you are at least 19 years old. 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 company or legal entity to this Agreement.
1.4
By subscribing for the Products and Services, you become a registered user of the Products and Services. When your subscription sign up is completed, you will be able to access the Products and Services through one of the Websites. You may activate your account via login on the Websites, which requires that you enter your email address and password, which is obtained during the sign up process. You are liable to pay Subscription Fees even if you do not activate your account.
1.5
All upgrades of Products and Services are deemed to be part of the Products and Services and are subject to this Agreement.
1.6
Except as provided in the Terapeak Refund and Cancellation Policy, all sales of Products and Services are final and the subscription fees payable by you for Products and Services are non-refundable.

2. THIRD PARTY DATA PROVIDER DATA, TERAPEAK DATA AND THIRD PARTY WEB SITES.

2.1
Certain Products and Services use data (the “Third Party Data”) obtained by Terapeak in accordance with terms and conditions of license agreements (the "Third Party Data Provider Agreements") between Terapeak and certain third party data providers (each a “Third Party Data Provider”). Certain Products and Services may use Data provided directly by Terapeak (“Terapeak Data”). Your use of Third Party Data, Terapeak Data and any other data accessed through the Products and Services (such as other user information) is limited strictly to the purpose of using the Products and Services. Except as permitted by this Agreement, any other use of Third Party Data, Terapeak Data or any other data accessed through the Products and Services will be a breach of this Agreement. For clarity, this restriction does not apply to data which you provide to Terapeak or which Terapeak obtains through the authorized use of your account and password information with Third Party Data Providers.
2.2
The Products and Services contain links to third party web sites. Terapeak has no control over any third party web sites and therefore any use by you of such websites is at your sole discretion and risk. Terapeak assumes no responsibility or obligations for any such use of third party web sites.

3. LICENSE GRANT/RESTRICTIONS ON USE.

3.1
The Products and Services contain software (“Licensor Software”) licensed from Terapeak’s licensors (“Terapeak Licensors”). The Products and Services are hereby licensed to you on a limited, worldwide (except as limited below), non-exclusive, non- sublicenseable basis on the terms and conditions set forth herein.
3.2
This Agreement defines legal use of the Products and Services, all updates, revisions, and substitutions. All rights not expressly granted to you are reserved by Terapeak or their respective owners.
3.3
Your license to the Products and Services continues until it is terminated by either party. You may terminate the software license granted hereunder by cancelling your subscription for the Products and Services, however, except as provided in our Refund and Cancellation Policy, you will not be entitled to a refund of any prepaid or other subscription fees. The software license granted hereunder terminates automatically if you violate any term of this Agreement, Terapeak publicly posts a written notice of termination on any of the Websites, or Terapeak sends a written notice of termination to you.
3.4
The Products and Services may include certain products or services including, without limitation, Licensor Software, that have additional specific terms or conditions relating to use or licensing that you will have to accept in order to use such products or services. Terapeak will provide notice of such terms and conditions prior to your use or access to such products or services.
3.5

(a) YOU MAY:

(i)
use the Products and Services, any updates provided by Terapeak (in its sole discretion), Licensor Software, Third Party Data, Terapeak Data or any other data accessed through the Products and Services, for your own personal or commercial use or benefit as expressly allowed by this Agreement;

(b) YOU MAY NOT, DIRECTLY OR INDIRECTLY:

(i)
use the Products and Services, Licensor Software, Third Party Data, Terapeak Data or any other data accessed through the Products and Services, except as expressly allowed by this Agreement;
(ii)
decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or make any attempt to discover the source code or underlying algorithms of, the Products and Services, Licensor Software or any portion thereof, or create derivative works or improvements based upon the Products and Services, Licensor Software or any portion thereof;
(iii)
use the Products and Services, Licensor Software, Third Party Data, Terapeak Data or any other data accessed through the Products and Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement;
(iv)
use the Products and Services to send, save, collect, upload, post, publish, distribute or transmit any content that:
(A)
is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(B)
contains a solicitation of funds, advertising, or solicitation for goods and services;
(C)
Terapeak determines is contrary to the interest of Terapeak, the Third Party Service Providers, Terapeak Licensors, Third Party Data Providers, or other users of the Products and Services;
(D)
is false, inaccurate, misleading or fraudulent;
(E)
may manipulate identifiers in order to disguise the origin of any content transmitted through the Products and Services or any associated software or hardware, or the source of any content; or
(F)
you do not have a right to make available under any law, contract or other legal relationship.
(v)
use the Products and Services to:
(A)
download, transmit or otherwise make available any material that contains malicious software or code, software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
(B)
bypass any measures that Terapeak has taken to restrict access to the Products and Services;
(C)
use any robot, spider, scraper or other automated means to access the Products and Services for any purpose;
(D)
interfere with, impose an unreasonable traffic load upon or disrupt the software, hardware, web site, servers or networks connected to the Products and Services, or disobey any requirements, procedures, policies or regulations of Terapeak’s networks connected to the Products and Services; or
(E)
violate, appropriate or infringe any right of any third party.
(vi)
use or export the Products and Services in violation of applicable laws or regulations;
(vii)
sell, lease, rent, loan, transfer or sublicense use of the Products and Services, in whole or in part, to third parties or provide access thereto or derive income from the use or provision of the Products and Services, via service bureau, time sharing or application service provider services or otherwise; whether for direct commercial or monetary gain or otherwise, without Terapeak's prior written permission;
(viii)
use the Products and Services in any manner that could damage, disable, overburden, or impair Terapeak's services or any of Terapeak's business partners' (including, without limitation, Third Party Service Providers, Terapeak Licensors and Third Party Data Providers) services (e.g., you may not use the Products and Services in an automated manner), or use the Products and Services in any manner that could interfere with any other party's use and enjoyment of Terapeak's services or Terapeak's business partners' services; or
(ix)
use any Third Party Data to advertise, market to or otherwise solicit any customers of the Third Party Data Providers.
3.6

(a) YOU WILL:

(i)
be solely responsible to provide or maintain any hardware or other software required for you to use the Products and Services;
(ii)
have all necessary right, power and authority to, or have obtained all necessary consents and rights in order to, provide all of the information that you provide through the Products and Services, and for all other purposes of this Agreement;
(iii)
ensure the confidentiality of your information and be, at all times, solely responsible for all activities that occur with respect to the Products and Services under your account or password, and you will notify Terapeak immediately of any unauthorized use;
(iv)
be solely responsible for all information received, sent, saved, collected or distributed through the Products and Services by you or in respect of your account or password, however transmitted; and therefore you are entirely responsible for all content that is developed, derived, received, sent, saved, collected, distributed or otherwise made available through the Products and Services.
3.7
Terapeak may impose an additional charge or a restriction of any services at any time, if your use of the Products and Services imposes a considerable effect on Terapeak’s (or any of its third party providers’ including, without limitation, the Third Party Service Providers, Terapeak Licensors and Third Party Data providers) resources or system performance. Terapeak shall have sole discretion as to what constitutes excessive use or what activity is considered excessive or has a “considerable effect”. Terapeak is responsible for monitoring such excessive use for the account as a whole, and has no responsibility to identify your individual end-user, employee, or other agent who may or may not be responsible for the excessive use of the Products and Services.

4. OWNERSHIP AND RELATIONSHIP OF PARTIES.

4.1
The Products and Services and Licensor Software are protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of Canada, the United States, and other countries. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in the Products and Services, the Licensor Software or this Agreement.
4.2
Terapeak and Terapeak Licensors own all right, title, and interest in and to their applicable contributions to the Products and Services. Other than the limited license granted herein, the software license granted under this Agreement grants you no right, title, or interest in any intellectual property owned or licensed by Terapeak or Terapeak Licensors, including, without limitation, the Products and Services, Licensor Software, Terapeak trademarks and Licensor trademarks, and creates no relationship between you and Terapeak or Terapeak Licensors other than that of licensor to licensee. This Agreement grants you no right, title and interest in any Third Party Data, Terapeak Data or any other data accessed through the Products and Services.
4.3
You agree not to assign, copy, transfer, or transmit the Products and Services, Licensor Software, Third Party Data, Terapeak Data or any other data accessed through the Products and Services, to any third party. Your license to use the Products and Services, Licensor Software, Third Party Data, Terapeak Data and any other data accessed through the Products and Services, will terminate if you violate these restrictions.
4.4
If your license terminates, you agree to cease any and all use of the Products and Services, Licensor Software, Third Party Data, Terapeak Data and any other data accessed through the Products and Services. All rights in any Third Party Data, Licensor Software, and any third-party data servers, including all ownership rights, are reserved by and remain with the respective third parties.
4.5
You represent and warrant that you own all right, title and interest to any data stored by you on Terapeak's host computer system using the Products and Services or uploaded or submitted to the Websites (the “Subscriber Data”). You hereby grant Terapeak a royalty free, perpetual, irrevocable, worldwide, non-exclusive, transferable license (with the right to sublicense) to use, reproduce, edit, copy, modify, adapt, publish, translate, distribute (in whole or in part through multiple tiers), stream, store, retain, publicly perform or display, transmit, scan, reformat, frame, excerpt, embed or incorporate in other works (in any form, media or technology now known or hereafter developed) and create derivative works using any Subscriber Data you provide, excluding personally identifiable information, in connection with the Products and Services and the Websites for the full term of any copyright that may exist in such material with or without attribution.
4.6
You acknowledge and agree that Terapeak may compile aggregate components of Subscriber Data, excluding personally identifiable information, together with information received from other subscribers to the Products and Services to create compiled data (the “Compiled Data”). Terapeak agrees to present the Compiled Data in a manner that will not reveal personally identifiable information. You acknowledge and agree that Compiled Data is owned solely by Terapeak.

5. PAYMENT TERMS

5.1
The payment terms contained in this Section 5 apply only if you have subscribed for the Products and Services directly from Terapeak. If you have subscribed for the Products and Services through a Third Party Service Provider, the applicable payment terms will be as agreed to by you and such Third Party Service Provider.
5.2
Terapeak reserves the right to change the Subscription Fees at any time. Terapeak charges and collects Subscription Fees in advance for use of the Products and Services.
5.3
The Subscription Fees do not include any payment for telecommunications and computer hardware, software, telecommunications access charges, lines or connections or other equipment and services required to access and use the Products and Services.
5.4
All Subscription Fees, Taxes and other charges will be billed as you’ve agreed to in the sign up process. You are responsible for and shall pay Terapeak all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (collectively, "Taxes") for the use of the Products and Services or resulting from this Agreement, whether imposed now or hereinafter by any governmental entity.
5.5
You agree to promptly pay Terapeak in the event of any refusal of your credit card issuer to pay any amount to Terapeak for any reason.
5.6
Terapeak may charge, and you will pay, interest at the rate of 18% per annum on any outstanding balance, together with costs of collection, including attorney's fees and costs. In the event you fail to pay any amount when due, Terapeak may immediately suspend or terminate your access to the Products and Services.
5.7
You must provide Terapeak with complete and accurate billing and contact information. YOU REPRESENT AND WARRANT THAT YOU HAVE NOT FALSELY IDENTIFIED YOURSELF NOR PROVIDED ANY FALSE INFORMATION TO GAIN ACCESS TO THE PRODUCTS AND SERVICES AND THAT YOUR BILLING INFORMATION IS CORRECT.
5.8
Terapeak reserves the right to revoke any stated offer and to correct any errors, inaccuracies or omissions, including after an order has been submitted, whether or not the order has been confirmed and your credit card charged. If your credit card has been charged for the purchase and an order is cancelled, Terapeak will issue a credit to your credit card account in the amount of the charge. Individual bank policies will dictate when this amount is credited to your account.

6. SUPPORT AND SOFTWARE UPDATES/ AVAILABILITY OF ONLINE SERVICES.

6.1
Terapeak will provide you with customer support and/or software upgrades, enhancements, or modifications for the Products and Services (collectively, "Support") provided that Terapeak, in its sole discretion, may terminate such Support at any time without notice to you. Terapeak may change, suspend, or discontinue any aspect of the Products and Services at any time, including the availability of any Products and Services related feature, database, or content. Terapeak may also impose limits on certain features and services or restrict your access to parts or all of the Products and Services or the Websites without notice or liability.
6.2
Terapeak will use commercially reasonable efforts to make the Products and Services available at all times. Terapeak does not guarantee that the Products and Services will always be available.
6.3
Terapeak may suspend or take down the Products and Services at any time to perform routine or emergency maintenance. Where reasonably practicable Terapeak will provide you advance notice when the Products and Services will be unavailable and for how long
6.4
Terapeak will, in general, attempt to schedule maintenance and downtime to the Products and Services during off-peak hours to try to minimize the impact to the Products and Services and you.
6.5
Terapeak is not responsible at all to provide Products and Services or any part thereof or perform any of its obligations under these this Agreement if it is prevented from doing so by any reason beyond Terapeak’s reasonable control. These reasons can include, but are not limited to, acts of God, floods, fires, earthquakes, civil unrest, terrorism, war, strikes, Internet service provider acts or omissions or online attacks.

7. DISCLAIMER OF WARRANTIES BY TERAPEAK.

7.1
USE OF THE PRODUCTS AND SERVICES, LICENSOR SOFTWARE, THE SUPPORT, THIRD PARTY DATA, TERAPEAK DATA AND ANY OTHER DATA ACCESSED THROUGH THE PRODUCTS AND SERVICES IS AT YOUR SOLE RISK. THEY ARE PROVIDED "AS IS." ANY MATERIAL OR SERVICE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS AND SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND/OR USE OF ANY SUCH MATERIAL OR SERVICE.
7.2
TERAPEAK, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND ASSIGNS (COLLECTIVELY, THE "TERAPEAK ENTITIES"), THIRD PARTY SERVICE PROVIDERS, TERAPEAK LICENSORS AND THIRD PARTY DATA PROVIDERS DO NOT REPRESENT THAT THE PRODUCTS AND SERVICES, SUPPORT, LICENSOR SOFTWARE, THIRD PARTY DATA, TERAPEAK DATA OR ANY OTHER DATA ACCESSED THROUGH THE PRODUCTS AND SERVICES IS APPROPRIATE OR AVAILABLE FOR USE OUTSIDE CANADA. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOUR USE OF THE PRODUCTS AND SERVICES, SUPPORT, LICENSOR SOFTWARE, THIRD PARTY DATA, TERAPEAK DATA AND ANY OTHER DATA ACCESSED THROUGH THE PRODUCTS AND SERVICES IS IN COMPLIANCE WITH APPLICABLE LOCAL LAWS.
7.3
THE TERAPEAK ENTITIES, THIRD PARTY SERVICE PROVIDERS, TERAPEAK LICENSORS AND THIRD PARTY DATA PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS AND SERVICES, SUPPORT AND ANY OTHER SERVICES RELATED TO THE PRODUCTS AND SERVICES (THE “TERAPEAK SOFTWARE SERVICES”), LICENSOR SOFTWARE, THIRD PARTY DATA, TERAPEAK DATA AND ANY OTHER DATA ACCESSED THROUGH THE PRODUCTS AND SERVICES, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE PRODUCTS AND SERVICES, SUPPORT, TERAPEAK SOFTWARE SERVICES, LICENSOR SOFTWARE, THIRD PARTY DATA, TERAPEAK DATA AND ANY OTHER DATA ACCESSED THROUGH THE PRODUCTS AND SERVICES, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7.4
IF THE PRODUCTS AND SERVICES, SUPPORT, TERAPEAK SOFTWARE SERVICES LICENSOR SOFTWARE, THIRD PARTY DATA, TERAPEAK DATA OR ANY OTHER DATA ACCESSED THROUGH THE PRODUCTS AND SERVICES PROVES DEFECTIVE, YOU (AND NOT THE TERAPEAK ENTITIES, TERAPEAK LICENSORS, THIRD PARTY SERVICE PROVIDERS OR THIRD PARTY DATA PROVIDERS) ASSUME THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF SOME OR ALL OF THE TERAPEAK ENTITIES, THIRD PARTY SERVICE PROVIDERS, TERAPEAK LICENSORS OR THIRD PARTY DATA PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH A DEFECT OR DAMAGES. SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.

8. LIMITATION OF LIABILITY.

8.1
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE TERAPEAK ENTITIES, THIRD PARTY SERVICE PROVIDERS, TERAPEAK LICENSORS AND THIRD PARTY DATA PROVIDERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SOME OR ALL OF THE TERAPEAK ENTITIES, THIRD PARTY SERVICE PROVIDERS, TERAPEAK LICENSORS OR THIRD PARTY DATA PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:
(A)
THE USE OR THE INABILITY TO USE THE PRODUCTS AND SERVICES;
(B)
THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES;
(C)
UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
(D)
STATEMENTS OR CONDUCT OF ANY THIRD PARTY USING THE PRODUCTS AND SERVICES; OR
(E)
ANY OTHER MATTER RELATING TO THE PRODUCTS AND SERVICES, SUPPORT OR TERAPEAK SOFTWARE SERVICES.
8.2
DAMAGES EXCLUDED BY THIS SECTION 8 INCLUDE, WITHOUT LIMITATION, THOSE FOR LOSS OF BUSINESS PROFITS, INJURY TO PERSON OR PROPERTY, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OR PERSONAL INFORMATION. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS RESTRICTION MAY NOT APPLY TO YOU.
8.3
INFORMATION PROVIDED THROUGH THE PRODUCTS AND SERVICES MAY BE DELAYED, INACCURATE, OR CONTAIN ERRORS OR OMISSIONS, AND THE TERAPEAK ENTITIES, THIRD PARTY SERVICE PROVIDERS, TERAPEAK LICENSORS AND THIRD PARTY DATA PROVIDERS WILL HAVE NO LIABILITY WITH RESPECT THERETO. TERAPEAK MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE PRODUCTS AND SERVICES OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE PRODUCTS AND SERVICES AT ANY TIME WITHOUT PRIOR NOTICE TO YOU, INCLUDING, BUT NOT LIMITED TO, CONTENT OR HOURS OF AVAILABILITY.
8.4
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE TERAPEAK ENTITIES, THIRD PARTY SERVICE PROVIDERS, TERAPEAK LICENSORS AND THIRD PARTY DATA PROVIDERS TO YOU RELATING TO, ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND SERVICES, SUPPORT, TERAPEAK SOFTWARE SERVICES, LICENSOR SOFTWARE, THIRD PARTY DATA, TERAPEAK DATA OR ANY OTHER DATA ACCESSED THROUGH THE PRODUCTS AND SERVICES EXCEED THE UNUSED PORTION OF YOUR PREPAID LICENSE FEE FOR USE OF THE DAMAGES EXCLUDED BY THIS SECTION 8 INCLUDE, WITHOUT PRODUCTS AND SERVICES. YOU EXPRESSLY AGREE THAT THE LIMITATIONS ON LIABILITY CONTAINED IN THIS AGREEMENT ARE REASONABLE AND CONSTITUTE A MATERIAL INDUCEMENT TO TERAPEAK PROVIDING THE PRODUCTS AND SERVICES, THE SUPPORT, THE TERAPEAK SOFTWARE SERVICES, LICENSOR SOFTWARE, THIRD PARTY DATA, TERAPEAK DATA AND ANY OTHER DATA ACCESSED THROUGH THE PRODUCTS AND SERVICES WITHOUT WHICH TERAPEAK WOULD NOT PROVIDE THE PRODUCTS AND SERVICES, SUPPORT, THE TERAPEAK SOFTWARE SERVICES, LICENSOR SOFTWARE, THIRD PARTY DATA, TERAPEAK DATA AND ANY OTHER DATA ACCESSED THROUGH THE PRODUCTS AND SERVICES.

9. INDEMNIFICATION.

You agree to indemnify and hold the Terapeak Entities, Third Party Service Providers, Terapeak Licensors and Third Party Data Providers harmless from any claim or demand, including reasonable attorneys' fees, made by any third party in connection with or arising out of your use of the Products and Services, Licensor Software, Support, Terapeak Software Services, Third Party Data, Terapeak Data, any other data accessed through the Products and Services, your violation of any terms or conditions of this Agreement, your violation of applicable laws, or your violation of any rights of another person or entity.

10. CONTROLLING LAW.

10.1
This Agreement shall be governed in all respects by the laws of the Province of British Columbia as such laws are applied to agreements entered into and to be performed entirely within British Columbia between British Columbia residents. The application of the United Nations Convention on Contracts for the International Sale of Goods (the “Vienna Convention”) is hereby expressly excluded. For purposes of this Agreement, both parties submit to personal jurisdiction in British Columbia and further agree that any cause of action arising under these API Terms of Use shall be brought exclusively in Supreme Court of British Columbia or Federal Court as applicable.
10.2
You acknowledge and agree that each Third Party Service Provider, Terapeak Licensor and Third Party Data Provider is a third party beneficiary of this Agreement and will have the right to directly enforce this Agreement in full force and effect in its own name as if Terapeak was enforcing such Agreement.

11. NO GENERAL WAIVER; SEVERABILITY.

The failure of Terapeak to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement or any part of any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable then the remainder of this Agreement shall continue to be of full force and effect.

12. ENTIRE AGREEMENT.

This Agreement, the T&C’s and the other documents incorporated by reference into this Agreement constitute the entire understanding between the parties respecting use of the Products and Services, superseding all prior agreements between you and Terapeak. In the event of any conflict between the terms and conditions of this Agreement and those in the T&C’s and other documents incorporated by reference, the terms and conditions of this Agreement will control, except to the extent that the T&C’s impose additional restrictions and liabilities on your actions.

13. SURVIVAL.

All terms and conditions of this Agreement that by their nature should reasonably survive, including, without limitation, Sections 4 (OWNERSHIP AND RELATIONSHIP OF PARTIES), 7 (DISCLAIMER OF WARRANTIES BY TERAPEAK), 8 (LIMITATION OF LIABILITY), 9 (INDEMNIFICATION), and 10 (CONTROLLING LAW), will survive any termination of this Agreement.

14. Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512 (c) and (d) of Title 17 of the United States Code

We respond to notices of alleged infringement of copyrights and other intellectual property rights pursuant to the United States Digital Millennium Copyright Act (“DMCA”). We work to ensure that content on the Websites does not infringe upon the copyright, trademark, or other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify us and we will investigate. Learn how to submit such a notice to Terapeak below.

How to report a listing to Terapeak 

If you have a good faith belief that an item on any of our Websites infringes on your copyrights or other intellectual property rights, you can report the alleged infringement to Terapeak by submitting a Notice of Claimed Infringement (NOCI) to Terapeak’s Designated Agent.

You can complete and submit an acceptable form of NOCI to Terapeak’s Designated Agent using our online NOCI form. Once your initial report has been processed, we may provide you with information on how to submit additional reports, if necessary, by email or through other electronic means.

If you are unable to fill out the online NOCI form, you can report infringement claims via a DMCA notification to Terapeak's Designated Agent by providing substantially the following information:

  1. The physical or electronic signature of the person authorized to act on behalf of the owner of the copyrights or other intellectual property rights in the work(s) that are allegedly infringed;
  2. Identification or description of the work(s) that you claim have been infringed;
  3. Identification or description of where the material that you claim is infringing is located on any of the Websites, with enough detail that we may find it on the Websites;
  4. Your name, address, telephone number, and email address;
  5. A statement by you that you have a good faith belief that the use of the material complained of is not authorized by the owner, its agent, or the law; and
  6. A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the owner of the copyrights or other intellectual property rights in the work(s) that are allegedly infringed or are authorized to act on the owner's behalf. 

Terapeak's Designated Agent may be contacted as follows

By mail:
Terapeak, Inc.
Attn: Designated Agent
200 – 1019 Wharf St.
Victoria, BC
V8W 1C9
Canada

By phone: (250) 483-9312
By email: DMCADesignatedAgent@terapeak.com

Once we receive proper notice of a claimed infringement under the DMCA, we may remove the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content at issue.

Terapeak has adopted and implements a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe copyrights or other intellectual property rights of Terapeak and/or others.