Terms & Conditions
- DEFINITIONS. “API” means a set of programming instructions and standards intended to be used as an interface by software components to communicate with each other.
“Personal Information” means personal information (as defined by applicable privacy law).
“Platform” means the Hop In standard software-as-a-service offering that is to be used by Customer and hosted by Hop In. The term “Platform” shall include any modifications, enhancements, APIs, integrations or related applications thereto, including any that are further described in any applicable Order.
SCOPE. This MSA governs Customer’s access to and use of Hop In’s logistics and planning services, including transportation and any ancillary services, delivered via Hop In’s website, online Web-based Platform and mobile application [PM2] [BR3] (the “Services[PM4] [BR5] [EK6] ”), all as provided for in an order form executed by both parties (“Order”). Each Order will be governed by the terms of this MSA and together with the MSA, forms the entire “Agreement” between the parties. Any conflict between the terms of this MSA and an Order will be resolved in favour of this MSA unless the Order explicitly states it is intending to modify the MSA.
SERVICES. Access to Services. Subject to Hop In’s compliance with its obligations under this Agreement, Hop In will make the Services available to Customer pursuant to this Agreement during the Term (as defined herein), solely for the internal business purposes of Customer (the “Permitted Purpose”).
User Access to Services. Subject to any usage limits (including those contractual service limits and quantities set forth in an Order), Customer may authorize, for administrative purposes, certain employees, contractors or agents (“Authorized Users”) to access the Services for the Permitted Purpose in accordance with the Agreement. Additionally, Customer and/or Authorized Users may invite Customer’s employees and other third parties to access the Services to view, visit, post, or comment on Customer Data (as defined herein) or participate in activities and these individuals shall be referred to as “Riders[BR7]”. Riders and Authorized Users shall be collectively referred to as the “Users”.
User Accounts[PM8][BR9]. All Users (including Authorized Users) of the Services must sign up for a Hop In account (an “Account”). Users will submit the information, as Hop In may reasonably request, to the Services. Customer is responsible for the creation, use and termination of, and for maintaining the confidentiality of all User log-in Account credentials and passwords (collectively, “IDs”) and will immediately notify Hop In of any unauthorized use of IDs or any other breach of security relating to the Services known to Customer. IDs cannot be shared or used by more than one User and Hop In will not be liable for any activities undertaken by anyone using a User’s ID. Hop In reserves the right, in its sole discretion, to change or disable any of the IDs used in connection with the Services where Hop In suspects there has been an attempted or actual security breach or to ensure the security of the Services.
Restrictions[PM10] [BR11] . Customer will not, and will not permit any third party to, directly or indirectly: (a) access or use the Services, except for the Permitted Purpose; (b) allow any third party to access the Services, except as expressly permitted herein; (c) modify, adapt, alter or translate the Services; (d) sublicense, lease, sell, resell, rent, share, loan, distribute, transfer or otherwise commercially exploit the Services or allow the use of the Services on behalf of or for the benefit of any third party; (e) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; (f) create derivative works based on the Services or access or use the Services to develop or create a competitive service or product; (g) attempt to circumvent any security device or feature of the Services (including contractual service limits and quantities set out in an Order); (h) load or penetration test the Services, except as expressly permitted; and (i) use the Services to store or transmit any virus, worm, trap door, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or program designed to permit unauthorized access to, or to erase or otherwise harm a party’s software, hardware, systems or data (“Malicious Code”).
Hop In Responsibilities. Hop In will: (a) provide Customer the support services (“Support Services”) set out in the Technical Support Policy; (b) make the Services available to Customer in accordance with the applicable Orders and Service Level Agreement (“SLA”) (c) host the Services, provided that nothing herein shall be construed to require Hop In to provide, or bear any responsibility, for any telecommunications or computer network hardware required by Customer or any Authorized User to access the Services from the Internet; (d) provide the Services in accordance with laws and government regulations applicable to Hop In in its provision of the Services; and (e) be responsible for the performance of Hop In’s personnel (including employees, agents and contractors) and their compliance with Hop In’s obligations under this Agreement.
Customer Responsibilities[PM15] . Customer will: (a) ensure that any and all access and use of the Services is in compliance with the Hop In Acceptable Use Policy [PM16] [BR17], this Agreement and laws, regulations and governmental or other regulatory bodies’ rules and policies applicable to Customer (including applicable privacy, data protection and anti-spam laws); (b) be responsible for use of the Services by Users; and (c) provide the information and assistance (if any) specified in the applicable Order to enable Hop In to provide the Services to Customer.
[API[PM18] [BR19] . Hop In provides access to its API as part of its Services at no additional fee during the Service Term of the applicable Order(s) only for the purpose of interacting with the Services as allowed by the API. Access to the API is subject to this MSA and any technical and functional information made available to Customer with the API. The API is provided on an ‘as is’ and ‘when available’ basis and Hop In has no liability to Customer because of any change, temporary unavailability, suspension or termination of access to the API. Furthermore, Hop In is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by, or transmission to, a Third Party Service (as defined herein) and is not responsible for the privacy, security or integrity of that Customer Data to the extent it is transmitted out of Hop In’s systems. When APIs are updated, Customer may be required to implement and use the most current version of the API. Access credentials may not be used by more than one individual but may be transferred from one individual to another if the original user is no longer using the API. Customer shall report to Hop In any security flaws discovered in the API or any actual or suspected unauthorized access to the API using Customer’s credentials. Where a third party is accessing the API without authorization, Customer will cooperate with Hop In in the enforcement and protection of Hop In’s rights and Customer’s access to such API may be suspended until such unauthorized activity is resolved to Hop In’s satisfaction.]
THIRD PARTY SERVICES. [THIRD PARTY SERVICES[PM20] [BR21] . Hop In or third parties may make available to Customer for purchase access to or use of third party software services, applications or functionality that link to, interoperate with, are used in conjunction with, or are incorporated into and resold through the Services (“Third Party Services”). Customer acknowledges and agrees that Hop In does not own or control such Third Party Services. The Third Party Services are made available as a convenience only and are not part of the “Services” or subject to any of the warranties (whether express or implied), service commitments or other obligations with respect to Services hereunder. Moreover, the Third Party Services providers are not partners, agents or representatives of Hop In and it is up to Customer to decide whether to use or enable these Third Party Services and Customer must rely on its own skill and judgement in electing to do business with such third parties. Hop In has no obligation to monitor or maintain Third Party Services and may disable or restrict access to any Third Party Services at any time without notice. Access to and use of any Third Party Services, including the availability thereof and uptimes related thereto, is at Customer’s own risk and is solely determined by the relevant Third Party Services provider and is subject to such additional terms and conditions applicable to such Third Party Services. Where applicable, Customer is solely responsible for maintaining appropriate accounts in good standing with the Third Party Services providers. Hop In will have no liability or other obligation to Customer for such Third Party Services or Customer Data exported to a Third Party Service, including but not limited to any unavailability of any Third Party Services, or any Third Party Service provider’s decision to discontinue, suspend or terminate any Third Party Services.]
OWNERSHIP. Rights in the Services. Subject to the limited rights expressly granted herein and excluding any Customer Data, (a) no other rights are granted to Customer hereunder and Hop In owns, retains and reserves all right, title and interest (including all copyright, patent, trade secrets and other intellectual property rights, whether registered or unregistered) in the Services, including modifications, improvements, developments, enhancements and derivative works howsoever created, even if unauthorized or on the request of or based on any Customer Data or any suggestion, idea or feedback, from Customer; and (b) no express or implied license or right of any kind is granted to Customer regarding the Services, or any portion thereof, including any right to obtain possession of any source code, data or other technical material relating to the Services. Customer acknowledges that it is obtaining only a limited right to access the Services.
Rights in the Customer Data. As between the parties, Customer owns all right, title and interest in the content, information, materials and data collected on, submitted or uploaded to, or shared using the Services by or on behalf of Customer, including the content, information, materials and data submitted or generated by Users[PM22] [BR23] (the “Customer Data”). Customer is solely responsible for the accuracy, quality, reliability, content and legality of all Customer Data and for obtaining all the necessary licences, intellectual property rights, clearances, permissions, consents and authorizations for use of Customer Data in connection with the Services (and in particular as contemplated by this Section 5.2)[, including with any Third Party Services.] Should Hop In deem any Customer Data either to be in breach of this MSA or to be reasonably expected to constitute grounds for Hop In’s exposure to civil or criminal liability, Hop In reserves the right, but does not assume the obligation, to remove such Customer Data from the Services or, if Hop In itself is unable to do so, to request the removal or editing of such Customer Data by Customer as Hop In sees fit. Customer will comply with any such request as soon as possible. Customer hereby grants Hop In a non-exclusive, worldwide, royalty-free right to (a) use, host, copy, store, transmit, modify, and display the Customer Data as necessary to exercise its rights under this Agreement and for the purposes of providing the Services, research and developing, creating and improving the functionality of the Services (provided that any Customer Data that is or contains Personal Information is de-identified prior to such activities); and (b) to use the Customer’s trademarks, service marks, and logos as required to provide the Services (and in compliance with Customer’s branding guidelines). Without limiting the foregoing, Hop In will treat all Customer Data as Confidential Information.
Publicity. During the Term, Customer hereby agrees that Hop In may use Customer’s name and logo to identify Customer as a customer who uses the Services. Customer and Hop In agree that during the Term they will collaborate on press releases and other joint communications surrounding Customer’s use of the Services. During the Term, Hop In may request Customer to serve as a reference, provide statements for marketing purposes, and/or develop case studies on Customer’s success in using the Services. Customer agrees to respond within a reasonable amount of time to any request from Hop In for assistance with the aforementioned.
Usage Data/Statistical Data. To deliver, support, develop, test and improve the Services, Hop In may collect, store, analyze and interpret data elements associated with or provided in the use of the Services and APIs. Hop In will own all rights in such data and any algorithm, computational or cumulative results of such data. Hop In may use such data for any purpose (including providing the Services, and auditing and improving the Services), and may provide it to third parties or compile it with other data to derive statistical and performance information, provided that it will aggregate and anonymize such data so that Customer or any person cannot be identified as the source of such data.
6.CONFIDENTIALITY, PRIVACY AND SECURITY. Confidentiality. During the Term, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) non-public technical, business, marketing, proprietary, trade secret, Personal Information or other information in any form relating to the Disclosing Party’s business designated or reasonably understood to be confidential (“Confidential Information”). The Receiving Party agrees that it take reasonable precautions to protect the Confidential Information and will not use, or disclose it to any third party, except as expressly permitted in the Agreement. Access to Confidential Information will be limited to those of the Receiving Party’s employees and contractors who need such access for purposes consistent with the Agreement and who owe the Receiving Party an obligation of confidentiality with terms consistent with this MSA. Confidential Information excludes information that the Receiving Party can establish: (a) was known to it prior to receiving the same from the Disclosing Party, free of any restrictions; (b) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; (c) is acquired from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party. The foregoing exclusions do not apply to Personal Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is necessary to enforce its rights under the Agreement or is required by law or pursuant to a court or regulatory order, provided that (if permitted by law) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks a protective order.
Hop In Security Obligations. Hop In will adhere to, in all material respects, its security processes and policies, and all privacy and data protection laws applicable to Hop In in its provisioning of the Services – noting that such compliance may depend on Customer’s compliance with Customer’s obligations hereunder, including pursuant to Section 3.4, 3.6, 5.2 and 6.3. Unless expressly agreed to herein, Hop In will not be responsible for compliance with any specific requirements with respect to Customer’s industry.
Customer Privacy Obligations. Customer is responsible for compliance with all privacy and data protection laws applicable to Customer and/or its use of the Services. Customer shall obtain the prior consent of each User to the collection, use and disclosure of their data in compliance with all applicable laws in all applicable jurisdictions of Customer and/or the Users. Subject to Section 6.2, Hop In disclaims any responsibility for the collection, use and/or disclosure of User data by Customer and its respective directors, officers, employees, contractors, agents and those for whom in law they may be responsible.
Privacy Breach. If Hop In determines that there has been any incident of theft, loss or unauthorized use or disclosure of Personal Information forming part of the Customer Data, Hop In shall promptly notify Customer and provide reasonable cooperation with Customer in containing, investigating and remediating that incident.
Prohibited Data. Customer will not upload to the Services or otherwise submit or make accessible to Hop In any financial account identifiers (e.g., credit card numbers or bank account numbers), government issued identifiers (e.g., social insurance numbers, health card numbers) or other types of sensitive data that is subject to specific or elevated data protection requirements (“Prohibited Data”), unless Hop In has expressly agreed that it can comply with such requirements. Should Customer breach its obligations under this Section 6.5, then Hop In shall have the right, at its sole discretion, to delete any Prohibited Data after providing Customer with at least ten days to export such Prohibited Data from the Services.
Express Consent. Customer consents to Hop In’s processing of Customer business contact information for business purposes including the provisioning of Authorized User Accounts, sending Service, sales and marketing communications and securing the Services.
7 FEES. Fees[PM24] [BR25] . Customer shall pay Hop In all fees and disbursements set forth in each Order (the “Fees”).
- REPRESENTATIONS AND WARRANTIES; DISCLAIMERS. By Hop In. Hop In represents and warrants to Customer that: (a) it has the power and authority to enter into the Agreement; (b) the Services and their use in accordance with the Agreement, in and of themselves, will not infringe any third party intellectual property rights; (c) it shall use commercially reasonable efforts, including deploying up-to-date anti-virus software on its servers, to protect Customer from receiving from the Services any Malicious Code; and (d) the Support Services will be performed with reasonable care and skill consistent with applicable professional standards.
Remedies for Non-conformance. In the event of Hop In’s non-conformance with the warranties provided in Section 8.1, Customer will notify Hop In in writing of such non-conformance within 30 days of the non-conformance and Hop In shall (a) use commercially reasonable efforts to make available to Customer conforming Services for the warranty in Section 8.1(c) and if it fails to do so within 30 days of the notice and the nonconformity materially diminishes the value of the Services, Customer shall have a right to terminate the nonconforming Service in accordance with Section 11.3; (b) for the warranty in Section 8.1(b), Customer shall invoke the provisions of Hop In’s infringement indemnity in Section 9.1; and (c) re-perform the Support Services at no cost to Customer for the warranty in Section 8.1(d) and if it fails to do so, Customer shall recover the Fees paid to Hop In for the nonconforming Support Service (if applicable). The foregoing remedies shall be Customer’s sole and exclusive remedies, except with respect to Section 8.1(c).
By Customer. Customer represents and warrants to Hop In that: (a) it has the power and authority to enter into the Agreement; (b) the Customer Data shall not contain any Malicious Code; (c) the Customer Data shall not infringe any copyright, trademark or patent right or misappropriate any trade secret; (d) it will comply with applicable law in using the Services (including the collection, use and disclosure of Customer Data in accordance with applicable laws); and (e) it has obtained the prior consent of each User to the collection, use and disclosure of their data.
Disclaimer. THE WARRANTIES SET FORTH IN SECTION 8.1 ARE MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS MSA, THE SERVICES (INCLUDING THE THIRD PARTY SERVICES) ARE PROVIDED “AS IS,” AND HOP IN MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, accuracy AND FITNESS FOR A PARTICULAR PURPOSE or the results CUSTOMER may obtain by using the services. HOP IN DOES NOT WARRANT THAT THE SERVICES WILL MEET ALL OF cUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES SATISFY THE CUSTOMER’S REGULATORY REQUIREMENTS. HOP IN DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE or that it will correct all defects or prevent unauthorized access. HOP IN does not warrant that the Services will be compatible with CUSTOMER’S computer systems or any Internet technology. HOP IN disclaims all failures, delays and other problems inherent with the internet and is not responsible for any CUSTOMER Data delayed, lost, altered, intercepted or stored during the transmission across networks not owned or controlled by HOP IN. HOP IN SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF CUSTOMER’s USE OF OR RELIANCE ON THE SERVICES OR CUSTOMER’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
- INDEMNIFICATION. By Hop In[PM36] [BR37] . Hop In shall indemnify and defend Customer against any third party claims brought against Customer alleging that the use of the Services as permitted hereunder infringes any copyright, trademark or patent right of such third party, and Hop In shall pay any losses, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim (“Costs”). If any portion of the Services becomes, or in Hop In’s opinion is likely to become, the subject of a claim of infringement, Hop In may, at Hop In’s option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (c) modify the Services so that the Services become non-infringing; or (d) terminate the Agreement or the applicable Order, and refund any Fees pre-paid by Customer to Hop In for Services from the effective date of termination to the end of the Term, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, Hop In shall have no obligation under this Section 9.1 or otherwise with respect to any infringement claim based upon any (i) use of the Services not in accordance with this Agreement; (ii) use of the Services in combination with other products, equipment, software or data not supplied by Hop In; or (iii) modification of the Services by any person other than Hop In or its authorized agents. This Section 9.1 states the sole and exclusive remedy of Customer and the entire liability of Hop In, and any of the officers, directors, employees, shareholders, contractors or representatives of Hop In, for claims and actions described in this Section 9.1.
By Customer. Customer shall indemnify and defend Hop In against any third party claims brought against Hop In (a) alleging Customer Data infringes the intellectual property, privacy or other rights of such third party; (b) alleging breach of Section 3.4, 3.6, 5.2, or 6; (c) arising from or in relation to Customer’s access to or use of the Services; or (d) alleging Customer’s use of the Services, other than as authorized in the Agreement, violates applicable law or infringes the intellectual property, privacy or other rights of such third party, and Customer shall pay the Costs. This Section 9.2 states the sole and exclusive remedy of Hop In and the entire liability of Customer, and any of the officers, directors, employees, shareholders, contractors or representatives of Customer, for the claims and actions described in this Section 9.2.
Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party promptly notifying the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (b) the indemnifying party having sole control of the defense or settlement of any claim or suit (provided the indemnifying party may not settle any claim without the indemnified party’s consent unless it unconditionally releases the indemnified party of all liability); and (c) the indemnified party (at the indemnifying party’s expense) reasonably cooperating with the indemnifying party to facilitate the settlement or defense of any claim or suit.
General. Indemnification by either party under the Agreement may be reduced to the extent of loss actually proven as directly attributable to the breach of the Agreement, negligence or willful misconduct of the other party.
LIMITATION OF LIABILITY. LIMITATION OF LIABILITY. HOP IN’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER AS A RESULT OF ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT, WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO HOP IN HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE FIRST EVENT GIVING RISE TO THE LIABILITY OCCURRED[PM38] [EK39] . IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ITS PERFORMANCE HEREUNDER, WHETHER THE ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS SECTION 10 WILL OPERATE TO EXCLUDE OR RESTRICT HOP IN’S LIABILITY (IF ANY) TO CUSTOMER FOR ANY MATTER FOR WHICH IT IS NOT PERMITTED BY LAW TO EXCLUDE OR LIMIT ITS LIABILITY, INCLUDING DEATH OR PERSONAL INJURY RESULTING FROM HOP IN’S NEGLIGENCE.
TERM AND TERMINATION. Term of MSA. This MSA commences on the Effective Date specified in the initial Order and remains in effect until all Orders have expired or been terminated in accordance with this MSA (“Term”).
Term of Service. Each Service is provided for the set term designated in the applicable Order (a “Service Term”). Unless an Order specifies otherwise, the Service Term will automatically renew for successive periods equal to the expiring Service Term or [one year], unless either party provides the other party at least [30 days’] written notice of non-renewal prior to the end of the then-current term. [The pricing during any renewal term may increase by up to 10% above the applicable pricing in the prior Service Term, unless Hop In provides Customer notice of different pricing at least [30 days] prior to the applicable renewal term.] Except as expressly provided in the applicable Order, renewal of promotional or one-time priced Services will be at Hop In’s applicable list price at the time of the applicable renewal. Any changes in the Services being ordered in a renewal term will result in repricing at renewal without regard to the prior Service Term’s fees.[PM40] [BR41] [EK42]
Termination. Either party may, immediately upon written notice to the other party, terminate the Agreement (including all applicable Orders) if the other party: (a) where curable, fails to cure any material breach of the Agreement within 60 days after written notice of such breach; or (b) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 30 days thereafter). Failure to attain service levels as stated in the SLA shall not constitute a breach of this MSA and the award of service level credits is Customer’s sole remedy for any such failure. [In the event Customer terminates an Order in accordance with this Section 11.3, Customer shall recover a refund of any pre-paid fees from the effective date of termination to the end of the applicable Service Term.][PM43] [EK44]
Customer Data Portability and Deletion. All Customer Data hosted and stored on the Services will be available to Customer for export or download during the Term and for a period of [30 days] after the effective date of termination of the applicable Order or this MSA. After such [30 day] period, Hop In will have no obligation to maintain or provide the Customer Data and will delete or destroy it in accordance with its standard practices, unless legally prohibited from doing so, and, upon request, an officer of Hop In will certify the same in writing.[PM45] [BR46]
Effects of Termination. Immediately upon termination of the Agreement and any Order, (a) all applicable rights granted to either party shall terminate; (b) Customer will cease to use the applicable Services; and (c) (subject to Section 11.4) each party will return or destroy Confidential Information of the other party and, upon request, an officer of such party will certify the same in writing. Termination shall not relieve Customer’s obligation to pay all undisputed charges accrued and payable before the effective date of termination.
Suspension Rights[PM47] [BR48] . In addition to its other rights under the Agreement, Hop In may, in its sole discretion, immediately suspend Customer’s [and/or any User’s] access to the Services, until the situation giving rise to the suspension has been remedied to Hop In’s satisfaction, where: (a) Customer’s [or User’s] use of the Services poses a reasonable risk of harm or liability to Hop In or any third party and Customer is not taking appropriate action; (b) there has been a violation of Section 3.4, 3.6, 5.2, or 6; (c) Customer [or User] is using the Services in violation of applicable law and/or fails to cooperate with Hop In’s investigation into any such alleged violation; (d) there has been an event of non-payment by Customer as contemplated in Section 7.2(b); or (e) a suspension is required by applicable law or governmental authority. Any such suspension by Hop In shall not relieve Customer of any of its payment obligations hereunder. Where reasonably practicable in the circumstances and unless prohibited by law, Hop In will, prior to suspending the Services, inform Customer of the concern as soon as reasonably possible.
WAIVER OF JURY TRIAL AND CLASS ACTION RIGHTS. WAIVER OF JURY TRIAL AND CLASS ACTION RIGHTS. WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THIS AGREEMENT: (A) CUSTOMER HEREBY EXPRESSLY GIVES UP ITS RIGHT TO HAVE A TRIAL BY JURY; AND (B) CUSTOMER HEREBY EXPRESSLY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
GENERAL. Insurance. Hop In will maintain, at its own cost throughout the Term, reasonable insurance coverage issued by reputable and financially sound insurance companies authorized to do business in the geographic area where the Services are to be performed. Upon Customer’s written request, Hop In will provide Customer with a certificate of insurance evidencing that its policies are in full force and effect. The confirmation by Hop In of any insurance coverage is in no manner intended to affect or increase Hop In’s liability as prescribed in Section 10 above.
Notice. Any notice given under this Agreement will be in writing and will be effective upon receipt or refusal if (a) delivered by hand; (b) delivered electronically by email; or (c) sent via overnight mail by a nationally recognized express delivery service; when addressed to the address or email address set forth in the recital, or to such other address that a party may specify in a notice given under this Section 13.2.
Governing Law. The Agreement has been made in and shall be construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles.
Arbitration[PM49] [BR50] . Any dispute or claim arising out of or relating to the Agreement will be referred to and finally resolved by arbitration under the Arbitration Act, 1991 (Ontario), as amended from time to time. The place of arbitration shall be Toronto, Ontario, Canada and the language of the arbitration shall be English. The number of arbitrators shall be one. The fees and expenses of the arbitrator will be borne equally between the parties. The arbitrator may order interest on any award and the arbitrator may award costs to either party. In the absence of any such award of costs, each of the parties will bear its own costs of the arbitration. Customer agrees that good faith negotiations and arbitration will all be without recourse to the courts and that the award of the arbitrator will be final and binding, except that: (a) either party may appeal an arbitration award to the courts of Ontario on a question of law; and (b) either party may apply to the courts of Ontario for an interim measure of protection or for any order for equitable relief which the arbitrator does not have the jurisdiction to provide.
Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
Assignment. Neither party shall assign the Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign the Agreement to any affiliate or to its successor in connection with any transaction or series of transactions pursuant to which all or a substantial part of the assigning party’s business (or the business which is the subject matter of the Agreement) is assigned to, or otherwise results in forming all or part of the business of such entity, whether by way of reorganization, merger, consolidation, amalgamation, arrangement, contribution, transfer, sale, change in control or otherwise by operation of law, and provided it promptly notifies the non-assigning party in writing of the assignment and the assignee agrees in writing to be bound by the terms of the Agreement and assume the obligations of the assignor under the Agreement pursuant to this Section 13.6. The Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
Force Majeure. Neither party shall be deemed to be in breach of the Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, third party strikes, failure of suppliers, fires, floods, earthquakes or Internet or telecommunications failures. In the event a force majeure event affecting a party continues for a period longer than 30 days, either party shall be entitled to terminate the Agreement as of the date specified in the written notice to the other party to that effect.
Remedies. Customer acknowledges that the Services contain valuable trade secrets and proprietary information of Hop In, and that any actual or threatened breach by Customer of its obligations with respect to intellectual property rights of Hop In, will constitute immediately, irreparable harm to Hop In for which monetary damages would be an inadequate remedy. In such case, Hop In will be entitled to seek immediate injunctive relief without the requirement of posting bond.
Independent Contractors. The parties are independent contractors and nothing in the Agreement shall be deemed to create any partnership, join venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
Severability; Waiver. In the event any provision of the Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect. No delay or omission to exercise any right or remedy by either party hereunder shall constitute a waiver of that right. No waiver of any provision of the Agreement shall be valid unless in writing and signed by the waiving party.
Survival. Those provisions of the Agreement that by their terms survive, or by their nature are intended to survive the termination of the Agreement, will survive any termination of the Agreement and remain in full force and effect.
Entire Agreement; Modifications. The Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes any prior or contemporaneous understandings or communications (oral or written) regarding such subject matter. In the event of a conflict between the terms in a Order and this MSA, the terms contained in this MSA shall control unless otherwise expressly stated in the applicable Order that it supersedes particular language in this MSA. The Agreement may be modified only by a written amendment executed by an authorized representative of each party.[PM51] [BR52]
Interpretation. In the Agreement, (a) words importing the singular number only shall include the plural and vice versa and words importing the masculine gender shall include the feminine; (b) the headings are intended solely for convenience of reference and will be given no effect in the interpretation or construction of the Agreement; and (c) wherever the words “include”, “includes” or “including” (or similar variations) are used, they shall be deemed to be followed by the words “without limitation” and the words following “include”, “includes”, or “including” (or similar variations) shall not be considered to set forth an exhaustive list.