Client Terms of Service
Last Modified: February 23, 2023
We have made revisions to these terms of service, effective February 23, 2023. By continuing to use our services after such date, you agree to the new terms of service.
Please review these terms (the “Agreement”) carefully. Wherever used in this Agreement, “you”, “your”, “Client”, and similar terms mean the person or legal entity accessing or using the Client Services. For the avoidance of doubt, if you are accessing and using the Client Services on behalf of a company (such as your employer) or other legal entity, “you”, “your” or “Client” means the company or other legal entity that you are using the Client Services on behalf of.
By signing an Authorization Form referencing this Agreement or by accessing or using the Client Services offered by VRIFY Technology Inc. (“VRIFY”, “we” or “us”), you are confirming that you have read, understand and accept this Agreement. This Agreement can be updated from time to time in accordance with Section 13.6 below. You are responsible for regularly reviewing the most current version of this Agreement, which is published at: https://vrify.com/legal/client-terms-of-service. When we change this Agreement, we will update the date above.
This Agreement applies only to the Client Services, as further defined below. The terms that apply to the use of VRIFY’s publicly available applications, websites or use of other services are available at https://vrify.com/legal/user-terms-of-service.
We use capitalization for terms that have a special meaning in this Agreement. While some terms are defined elsewhere, this section sets out the definitions of some key terms.
“360 Photos” means images and photos taken, created or edited during or in connection with the development of VRIFY Products, which are either taken by us or our Affiliates or which utilize our photographer’s guidelines and/or post-production work.
“3D Model” means a three dimensional model of the Project Site(s) comprising up to 15 layers of Client-supplied data, formatted as specified by VRIFY with respect to file type and geographic coordinate system and displayed as per VRIFY’s symbology standards.
“Acceptable Use Policy” means our rules and policies for the use of our Platform and all VRIFY Content, as amended from time to time (provided such changes apply to all users and/or clients of VRIFY and that no such amendment will be effective without prior written consent of the Client if such amendment is materially detrimental to the Client) and available at https://vrify.com/legal/acceptable-use-policy which is hereby incorporated by reference and forms a part of this Agreement.
“Affiliate” means a person or entity that owns, is owned by, or is under common control with a Party, and “control” in this definition means that a person or entity owns more than 50% of the equity interest of any entity and/or has the ability to control the management of such entity.
“Authorization Form” means a document that, upon execution by the Parties, forms a part of and is subject to this Agreement and that describes a particular scope of work to be performed by VRIFY for Client, the applicable Services, Deliverables, fees and any other matter as the Parties may agree in respect of such scope of work.
“Authorized Users” means individuals who are authorized by you to access and use the VRIFY Editor and/or VRIFY Deck.
“Background IP” means the Platform and various content, information, data, tools, processes, methods, designs, 2D or 3D imaging tools, models, software, software code, and know-how, whether or not copyrightable or patentable, that we created, own or have rights to and may use in connection with the performance of the Services and the creation of the Deliverables, whether pre-existing or created or invented during the performance of the Services. Background IP excludes Client Content and Client Information.
“Client Audio/Visual Materials” means the images, photos, videos, and audio recordings supplied by Client to VRIFY for use on the Platform or to create the Deliverables or made available by Client on its website.
“Client Content” means all information and data (including text, written documents, corporate information, and the Client Audio/Visual Materials) or any other content in any media and format, provided or made available to VRIFY by you or on your behalf for use on the Platform, or to be incorporated into the Deliverables. Client Content includes Non-360 Photos.
“Client Information” means information and data submitted by or for you to VRIFY for the creation and management of your account for the Services.
“Client Services” means the services made available by VRIFY to its issuer clients, including the Services, the Deliverables and the availability of the Platform.
“Company Administrator Account” means the user account of Client through which an Authorized User will be able to view and edit all public and selected secure VRIFY Content of Client on the Platform.
“Copyright & IP Infringement Policy” means our rules and policies for the treatment of copyrighted materials made available through our Platform, as amended from time to time (provided such changes apply to all users and/or clients of VRIFY and that no such amendment will be effective without prior written consent of the Client if such amendment is materially detrimental to the Client) and available at https://vrify.com/legal/copyright-and-ip-infringement, which is hereby incorporated by reference and forms a part of this Agreement.
“Deliverables” means the items identified as a deliverable in an Authorization Form, including all images, photos and other digital content created by us in connection with the development of the applicable VRIFY Products. “Subscription Fee” means the monthly fee in respect of the Platform as set out in the Authorization Form.
“Look and Feel” means the distinctive and particular elements of graphics, design, organization, presentation, layout, user interface, navigation, trade dress and stylistic convention (including the digital implementations thereof) of: (a) the user interface for the VRIFY Products; (b) the user interface for VRIFY’s mobile application and website, and (c) the user interface for the Platform, and the overall appearance and impression substantially formed by the combination, coordination and interaction of such elements.
“Press Releases” means news and current events information and data (including text, images, photos, videos, audio, corporate information, and documents), in any media and format, provided or made available to VRIFY by a third party service provider.
“Non-360 Photos” means images and photos taken, created or edited during or in connection with the development of the applicable VRIFY Products which are not 360 Photos.
“Party” means either of you or us and “Parties” means, collectively, you and us.
“Personal Information” means information about an identifiable individual.
“Platform” means the VRIFY Editor, VRIFY Products and our mobile application and website.
“Production Shoot” means the conduct of filming and photography for the purposes of producing the Deliverables.
“Project Fee” means the fee in respect of the content development of the Services as set out in the Authorization Form.
“Project Site” means the project site described in the Authorization Form, including all lands owned, purported to be owned, or leased by you and your subsidiaries and Affiliates and all plants, buildings, structures, erections, improvements, appurtenances and fixtures situate on or forming part of such lands.
“Representatives” means, as to any person, such person’s Affiliates, and its and their respective directors, officers, employees, contractors, subcontractors and consultants.
“Services” means the content development, technology development, project management, hosting and other services set forth in an Authorization Form.
“Taxes” means all taxes, assessments, charges, fees, and levies that may be levied or based upon the sale or license of goods and/or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, custom duties, and assessments together with any installments with respect thereto, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority (including federal, state, provincial, municipal, and foreign governmental authorities).
“User Terms of Service” means our rules and policies for the use of our Platform, the Services and all VRIFY Content, as amended from time to time (provided such changes apply to all users and/or clients of VRIFY and that no such amendment will be effective without prior written consent of the Client if such amendment is materially detrimental to the Client) and available at https://vrify.com/legal/user-terms-of-service which is hereby incorporated by reference and forms a part of this Agreement.
“VRIFY Content” means all digital content supplied by VRIFY, including all elements of the VRIFY Products (but excluding any Client Audio/Visual Materials and written materials contained therein) including but not limited to all 360 Photos, all Background IP, Deliverables and Press Release content.
“VRIFY Deck” means an interactive presentation tool powered by VRIFY.
“VRIFY Editor” means a proprietary content management system comprised of software, content, text, images, media, and other materials that enables Authorized Users and/or VRIFY to manage and publish Client Content, including any modifications or updates.
“VRIFY Meeting” means conferences, presentations or other meetings created by you or your Representatives, via the Platform.
“VRIFY Meeting Content” means all information and data (including text, images, photos, videos, audio, and documents) or any other content in any media and format provided or made available in connection with a VRIFY Meeting.
“VRIFY Meeting Participant” means a person who participates in a VRIFY Meeting session.
“VRIFY Products” means VRIFY Meeting(s), VRIFY Editor and VRIFY Deck collectively.
2.1. Services. We will provide to you those Services selected by you that are listed in the Authorization Form. In connection with the Services, we will host the Platform using a public cloud services provider and will use commercially reasonable efforts to service the Platform in accordance with the service level criteria and performance metrics we consider appropriate from time to time. You acknowledge that the Platform may be subject to usage limits which we may communicate to you from time to time. If you exceed any such usage limit, we may work with you to seek to reduce your usage so that it conforms to that limit.
2.2. Client Support. We will provide you with reasonable hosting services support during our normal business hours in response to a request submitted by you to the designated customer service manager appointed to you by VRIFY from time to time.
2.3. Updates. We may change the Platform (such as by changing, adding or removing features) at any time, for any reason, and may or may not provide notice of those changes to you.
2.4. Non-Exclusivity. You acknowledge that the rights granted to you under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict our right to license, sell, or otherwise make available the VRIFY Editor to any third party or perform any services for any third party including but not limited to a competitor of Client.
3.1. Deliverables. During the Term of this Agreement, subject to the terms and conditions of this Agreement, we will provide to you the Deliverables set out in the Authorization Form.
3.2. Cooperation. In order for us to supply any Deliverables, you will, in a timely manner: (i) make your Representatives reasonably available at such times and locations as we may reasonably request; (ii) allocate sufficient resources, perform any tasks, and deliver any materials, including Client Content, reasonably necessary to enable us to perform the Services; (iii) respond to our inquiries related to the Services; (iv) provide VRIFY and its Representatives with reasonable access to enter upon the Project Site and carry out work thereon as reasonably necessary to enable us to perform the Services, including bringing upon and erecting on the Project Site such structures, machinery and equipment, facilities and supplies, as VRIFY considers advisable; and (v) provide complete, accurate, and timely information, organized and accurate data, and feedback all as reasonably required by us. If you do not comply with your obligations in this Section 3.2 in a timely manner, delays may result.
3.3. Photographs, Videos and Recordings. You hereby grant permission to VRIFY and its Representatives to take or edit photographs, videos and recordings of the Project Site for purposes of developing the Deliverables. You acknowledge that all photographs, videos and recordings of the Project Site that are taken or edited by VRIFY or its Representatives constitute “VRIFY Content” for the sole purpose of creating the Deliverables and for no other purpose and only for so long as you are utilizing VRIFY Products. VRIFY and its Representatives have the right to edit, reproduce, use, exhibit, display, broadcast, distribute, communicate by telecommunication, store, archive, and index and create derivative works from such photographs, videos and recordings other than non-public and identifiable photographs, videos and recordings of the Project Site. You hereby waive any right to royalties or other compensation arising from or related to the use thereof. You agree to obtain or assist us or our Representatives in obtaining a waiver, indemnity and release in form satisfactory to us from each individual whose image or voice will be included in such photographs, videos and recordings.
Under no circumstances will we be liable in any way for Client Content or for your failure to obtain necessary licenses and certifications in respect of photography and drone services.
3.4. Schedule. Subject to Section 13.5, we will use commercially reasonable efforts to supply the Deliverables according to any schedule we may communicate to you in writing from time to time.We will be entitled to re-schedule, without liability, any part of the Services where foreseeable adverse weather conditions could impact either the schedule for the Production Shoot, health and safety or the Deliverables.
We will not be liable for the cost of any re-shooting where the need for such re-shooting has been caused by adverse weather conditions or such factors that are beyond our control.
In the event that the Services are delayed due to reasons directly attributable to Client, VRIFY will not be obliged to meet any original deadline, nor will VRIFY be under any obligation to endeavour to make good any time lost due to actions or omissions on the part of Client.
3.5. Scope Changes. You may, from time to time, request changes in the scope of the Services (a “Change Request”). Upon receipt of a written Change Request, we will evaluate such requested changes and, within ten days of such Change Request, make the changes set out in a Change Request or submit to you a written response (the “Change Order”) to the Change Request. The Change Order will indicate, among other things, the extent to which the Change Request will impact the Subscription Fee, Project Fee, or other fees payable by Client, and Deliverables, if any, and/or other terms set forth in this Agreement. If you accept such Change Order (such acceptance to be indicated in writing), the Change Order will be incorporated by reference into this Agreement and will be deemed to amend and modify this Agreement to the extent specified in the Change Order. Should you not accept the Change Order, this Agreement will continue in full force and effect, unamended.
3.6. Post-Production. We will not send you 360 Photos or other Deliverables to edit. You may request edits to the Deliverables (“Post-Production Edits”). We are not obligated to make any Post-Production Edits and any such edits we do make will be in our sole and absolute discretion. Without limiting the foregoing discretion, we will generally make Post-Production Edits consisting of colour correction, stitching, compression, and necessary edits to the skies. We will not make Post-Production Edits which alter the elements of a photo. Under no circumstances will we be liable in any way for any Post-Production Edits.
3.7. Photographer's Guidelines. Under no circumstances will we be liable in any way for any images, photos, videos, or audio recordings you or your Representatives may take, create or edit based on guidelines or other recommendations provided by VRIFY. You and your Representatives take, create or edit any such images, photos, videos, or audio recordings at your own cost and risk.
4. INTELLECTUAL PROPERTY OWNERSHIP
4.1. Platform, Look and Feel, and VRIFY Content. As between you and VRIFY, VRIFY and its licensors retain all right, title, and interest in and to the Platform, the Look and Feel, and all VRIFY Content. Nothing herein will be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Platform, the Look and Feel or any VRIFY Content or any of our rights or interests in any of them or any other of our intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Platform, the Look and Feel, and VRIFY Content not expressly granted in this Agreement are reserved by us. Without limiting the generality of the foregoing, we may use the Deliverables to develop and market the Platform.For greater certainty and without limiting the generality of the foregoing, at no time will you directly or indirectly permit any person or individual to access, use, reproduce, electronically distribute, communicate by telecommunication, transmit, display, or otherwise exploit any VRIFY Content for any purpose other than as set out in this Agreement without VRIFY’s prior written consent.
4.2. Client Content and Client Information. As between you and VRIFY, you and your licensors retain all right, title and interest in and to all Client Content and all Client Information. All rights, title, and interest in and to the Client Content and Client Information not expressly granted in this Agreement are reserved by you.
5.1. Client Content and Client Information.
(i) You hereby grant us a worldwide, non-exclusive, perpetual, non-transferable (except as set forth in Section 13.3) royalty-free and fully paid up license, to access, use, reproduce, electronically distribute, communicate by telecommunication, transmit, perform, format, edit, display, store, archive, and index all Client Audio/Visual Materials for so long as you are utilizing VRIFY Products.
(ii) You hereby grant to us a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to promote, post, share, reproduce, distribute or display the Deliverables and/or VRIFY Content via third party service providers and/or platforms.
(iii) You hereby grant us a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 13.3) royalty-free and fully paid up license, for the Term to access, use, reproduce, electronically distribute, communicate by telecommunication, transmit, perform, format, edit, display, store, archive, and index: (a) your Client Content (excluding the Client Audio/Visual Materials) for the purposes of creating and maintaining the VRIFY Products, providing you with access to the Platform and Services and supporting your use of the Platform and developing and marketing the Platform; and (b) your Client Information for the purposes of providing access to and use of the Platform and Services to you and supporting the operation of your account on the Platform.
(b) Liability for Client Content and Client Information. You are solely responsible for the Client Content and Client Information uploaded, published, displayed, linked to, or otherwise made available via the Platform, and you agree that the Platform is only a platform for the distribution and publication of the Client Content and Client Information. This includes but is not limited to data verification. Subject to Section 5.7, we will not review, share, distribute, or reference any Client Content or Client Information, except as provided in our Copyright & IP Infringement Policy, or as may be required by law. You shall comply with and all Client Content and Client Information must conform with our Acceptable Use Policy. Notwithstanding the foregoing, we reserve the right to review, filter, block or remove any Client Content or Client Information that we deem in violation of this Agreement, (including our Acceptable Use Policy) in our sole discretion. Under no circumstances will we be liable in any way for Client Content or any Client Information.
(c) VRIFY Products. You may supply Client Content (including Client Audio/Visual Materials) to us for inclusion in the VRIFY Products. You acknowledge and agree that if we or our Representatives create any updates to such Client Content or any Client Audio/Visual Materials at your request, the updates may be at your additional expense and such updates will form part of the VRIFY Content.
5.2. VRIFY Content. We will supply and host the VRIFY Content on the Platform as part of our Services. If you have elected to have us link some of the VRIFY Content directly to your website or other electronic platform identified in an Authorization Form, we hereby grant to you a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 13.3) license, without a right of sublicense, for the Term to communicate by telecommunication the VRIFY Content that we link to your website or other electronic platform for the sole purposes of marketing your Project Site(s) on the Platform.
5.3. Access and Use of Platform. Subject to your compliance with this Agreement and our Acceptable Use Policy, we grant to you a limited, non-exclusive, non-transferable (except as set forth in Section 13.3) license, without a right of sublicense, for the Term to access and use the Platform to upload Client Content and Client Information and to manage Client Content, Client Information and VRIFY Content that is specified in an Authorization Form, all solely for your communications, investor and community relations purposes.
5.4. Deliverables Updates. From time to time we may incorporate updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Deliverables (collectively, the “Deliverables Updates”). If we do not receive your prior written or electronic approval to publish any such Deliverables Updates, we will not publish such Deliverables Updates to the public section of the Platform. Any Deliverables Updates will be provided on a commercially reasonable efforts basis. Under no circumstances will we be liable in any way for Deliverables Updates.
5.5. VRIFY Meeting. You shall:
(a) be responsible for the VRIFY Meeting sessions and VRIFY Meeting Content;
(b) ensure that each VRIFY Meeting complies with all applicable laws, rules, and regulations;
(c) if requested by us in writing, establish procedures for each VRIFY Meeting session that accomplish the following:
(i) notifies each VRIFY Meeting Participant that the VRIFY Meeting session is in no way sponsored, endorsed, or administered by, or associated with, us; and
(ii) states that each VRIFY Meeting Participant unconditionally releases and holds harmless us from any and all liability associated with the VRIFY Meeting session;
You acknowledge and agree that:
(d) VRIFY Meeting is confidential and will not be recorded;
(e) without our prior written consent, you may not refer to us nor use our name, trade-marks, or trade names in connection with a VRIFY Meeting session or in the materials relating to a VRIFY Meeting session;
(f) we are not responsible for monitoring your compliance with the obligations in this Section 5.5. If you are in breach of such obligations with respect to a VRIFY Meeting, we may temporarily suspend such VRIFY Meeting and your access to the Client Services; and
(g) under no circumstances will we be liable in any way for VRIFY Meeting Content.
5.6. Securities Law Matters
While we specifically disclaim any responsibility to do so, we may review Client Content or Client Information from time to time. If in our reasonable opinion any Client Content or Client Information will constitute or could be expected to constitute a misrepresentation under applicable securities laws, we may refuse to utilize such Client Content or Client Information in any VRIFY Products.
5.7. Electronic Messages.
The Client Services allow communication between you and other users of the Client Services through the functionalities and features included in the Client Services. You may initiate communication or others may start the communication by messaging you first. Messages you send or receive may encourage you to participate in a commercial activity, such as participating in an investor call, reviewing a business opportunity, marketing and promotional material, scheduling a time to speak about business matters, and other commercial activities. These messages may be considered “commercial electronic messages” under Canada’s anti-spam law (CASL) and similar legislation of other jurisdictions. By using the Client Services, you are consenting to receiving commercial electronic messages from VRIFY and other users of the Client Services to your account or other contact information you provide through the Client Services.
6. Fees, Expenses and Taxes
6.1. Fees. You will pay us the Subscription Fee, Project Fee and such other fees and charges specified in the Authorization Form.
We may introduce additional packages from time to time which you may opt-in to.
VRIFY reserves the right to increase the Subscription Fee (or fees for any new packages introduced from time to time) by providing Client at least 60 days’ written notice thereof (which notice may be provided by email).
6.2. Expenses. You will reimburse us for all Permitted Expenses within 30 days of receipt of an invoice from us for such Permitted Expenses. In certain circumstances we may require you to provide payment for Permitted Expenses in advance. For the purpose of this Section 6.2, “Permitted Expenses” means all reasonable expenses incurred by us in the course of performing the Services, including the travel, meal and accommodation expenses incurred by our personnel who are performing Services away from their home locations (including but not limited to all travel, meal and accommodation expenses incurred in connection with a visit to the Project Site).
6.3. Deposit. You will pay us any deposit stipulated in the Authorization Form. Until any such deposit is provided as requested, we will not be required to carry out any work. We will apply such deposit against our invoices issued from time to time pursuant to Section 6.4.
6.4. Invoices. We will invoice you in the currency set forth on the applicable Authorization Form. Unless otherwise stated on the Authorization Form, all undisputed invoices are payable within 30 days of the invoice date. Any disputed amounts will not affect payment of non-disputed amounts. You will make payments to the entity and address set forth in the invoice.
6.5. Late Payment. If any amounts invoiced hereunder are not received by us by the due date, then at our discretion, such charges may accrue late interest at the lower of (a) the rate of 12% per year, or (b) the maximum rate permitted by law, from the date such payment was due until the date paid. In addition, upon ten days’ notice to you provided after the due date of any undisputed amount, we may suspend your access to the Client Services if we have not received the amounts invoiced in full.
6.6. Taxes. You are responsible for paying all Taxes associated with your subscription to the Platform and your receipt or use of the Services or the Deliverables. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 6.6, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.7. Withholdings. Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any Taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, we receive an amount equal to the sum we would have received had no such deduction or withholding been made.
7. Confidential and personal information and security
7.1. Confidential Information. VRIFY and you may exchange“Confidential Information” in the course of your negotiation and use of our Client Services. VRIFY’s Confidential Information may include non-public information about our pricing, personnel, or partnerships, our product roadmap, our security documentation, or other non-public information we identify as confidential. Your Confidential Information may include non-public information about the Project Site, your policies (such as your policies for internal review or approval of Client Content), personnel (including names and email addresses of your Authorized Users), or plans or strategies. When either you or we (the “recipient”) receive Confidential Information from the other (the “discloser”), the recipient will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and will not disclose or use any Confidential Information of the discloser for any purpose outside of the scope of this Agreement. Information will not be considered Confidential Information if (i) it was lawfully in the recipient's possession before receiving it from the discloser; (ii) it is provided in good faith to the recipient by a third party without breaching any rights of the discloser or any other party; (iii) it is or becomes generally available to, or accessible by, the public through no fault of the recipient; or (iv) it was or is independently developed by the recipient without reference to the discloser’s Confidential Information. In the event that the recipient or any representative of the recipient becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the recipient will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure. Notwithstanding the forgoing, VRIFY may disclose any such Confidential Information to its Representatives who: (i) need to know the Confidential Information to assist VRIFY, or act on its behalf, in exercising its rights or performing its obligations under this Agreement; (ii) are informed by VRIFY of the confidential nature of the Confidential Information; and (iii) are subject to confidentiality duties or obligations to VRIFY that are no less restrictive than the terms and conditions of this Agreement.
7.2. Personal Information. The Parties will use commercially reasonable efforts to avoid any disclosure of Personal Information by the Client to VRIFY. If the Client does disclose any Personal Information to VRIFY, then the Client is the owner and controller of such Personal Information and VRIFY is a data processor acting on behalf of the Client. VRIFY will immediately report to the Client any requests received from individuals for access to or correction of their Personal Information. When such Personal Information is no longer required for the provision of Services, VRIFY will delete such Personal Information at the request of the Client (provided however that VRIFY may retain such Personal Information for as long as it is required to do so under applicable laws). The Client warrants that all Personal Information disclosed to VRIFY has been collected and disclosed in accordance with all applicable privacy laws.
7.3. Security Requirements. We will use commercially reasonable efforts to implement technical and organizational security measures consistent with the prevailing industry standards including SOC 2. However, we cannot guarantee that unauthorized third parties will never be able to defeat any such measures, and we expressly deny any responsibility for damages, monetary or otherwise, resulting from our failure to implement such measures or from unauthorized third-party access to your account or use, alteration, or disclosure of the Client Content or the Client Information.
8. Restrictive covenants
8.1. Restrictive Covenants. During the Term and for a period of three years thereafter, you will not directly or indirectly: (a) hire or engage any of our Representatives (other than subcontractors), or solicit or encourage any of them to terminate any employment or contract with us; or (b) provide any information concerning such persons to any recruiter or prospective employer, in each case without our prior written permission.
8.2. Reasonableness. You agree that: (a) all restrictions contained in Section 8.1 (collectively, the “Restrictive Covenants”) are reasonable and valid in the circumstances and you hereby waive all defences to the strict enforcement thereof; (ii) each of the restrictions forming part of the Restrictive Covenants are separate and distinct covenants, severable one from the other and if any such covenant or covenants are determined to be invalid or unenforceable, such invalidity or unenforceability will attach only to the covenant or covenants as so determined and all other such covenants will continue in full force and effect; and (iii) monetary damages for any breach the Restrictive Covenants would be inadequate for the immediate and irreparable harm that would be suffered by us for any such breach, and so, on any application to a court, we will be entitled to temporary and permanent injunctive relief against you without the necessity of proving the party’s actual, monetary damage.
9. Term and Termination
9.1. Term of Agreement. This Agreement will commence on the first day of the initial term set forth on your first Authorization Form, and will continue in effect until the earlier of: (a) the expiration of all Authorization Forms applicable to you (including any renewal periods unless notice of non-renewal is provided as set out in Section 9.2); and (b) the termination of this Agreement in accordance with its terms (the “Term”).
9.2. Term of Authorization Forms. The term of each Authorization Form will start on the first day of the initial term specified on the Authorization Form and will continue for the specified term. Except as expressly stated otherwise in an Authorization Form, all Authorization Forms will automatically renew for subsequent one-year renewal periods unless a party gives the other party written notice of non-renewal at least 60 days prior to the end of the then-current term. Upon the conclusion of the initial 12 months of the Term, you may terminate an Authorization Form by giving us 30 days written notice provided you provide us with any amounts due to us under this Agreement. You may terminate an Authorization Form during the initial 12 months of the Term by giving us 30 days written notice provided you provide us, as consideration for the right to terminate, any amounts due under this Agreement and all Subscription Fees that would otherwise, if not for such termination, become due and payable during the initial 12 months of the Term (the “Termination Fee”). The Parties intend the Termination Fee to be liquidated damages constituting compensation, and not a penalty.
9.3. Termination for Cause. A Party may immediately terminate this Agreement (a) immediately if the other party has failed to cure a material breach within 30 days of receiving written notice of that material breach from the other party; or (b) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. VRIFY may immediately terminate this Agreement if you or any of your directors or officers are formally accused of conduct which, in our good faith determination, materially harms our reputation or would harm our reputation by our continued association with you.
9.5. Effects of Termination. Upon termination of this Agreement for any reason: (a) all Authorization Forms will automatically terminate; (b) you will immediately cease all access to and use of the Platform; (c) you will immediately remove any VRIFY Content that appears on your website (and all other digital platforms that we have approved for you to display the VRIFY Content) and disable any links between your website (and all other digital platforms that we have approved for the display of the VRIFY Content) and the Platform; (d) you will have no further access to the accounts provided by VRIFY and the Platform; and (e) you will pay all unpaid amounts you owe to VRIFY. If VRIFY terminates this Agreement in accordance with Section 9.3, then, without limiting any other remedies that may be available, you will pay any unpaid fees covering the remainder of the Term. In no event will termination relieve you of your obligation to pay any amounts payable for the period prior to the date of termination.
9.6. Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination will survive the expiration or termination of this Agreement. Without limiting the foregoing, the provisions under ARTICLE 4, ARTICLE 6, ARTICLE 7, ARTICLE 8, ARTICLE 11, ARTICLE 12 and ARTICLE 13, Section 9.5 and Section 10.4 will survive the expiration or termination of this Agreement.
10. Warranties and warranty disclaimers
10.1. Mutual Warranties. Each of VRIFY and Client represents and warrants that (a) it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; and (b) it will perform its obligations and duties and exercise its rights under this Agreement in compliance with all laws applicable to it.
10.2. Client Warranties. You warrant that (a) you have all right, title and interest in and to, and all intellectual property rights in, the Client Content and Client Information and that you have obtained written waivers of all moral rights therein from any individual who may be considered as an author or creator of such works; and (b) no part of the Client Content or Client Information will infringe the intellectual property rights of any person.
10.3. VRIFY Warranties. We warrant that the Services will be performed in a professional manner in accordance with generally accepted industry standards. For any breach of this warranty, your exclusive remedy and our entire liability will be the re-performance of the applicable Services. If we are unable to re-perform the Services as warranted, your exclusive remedy will be to seek recovery of any Project Fees paid to us for the deficient Services. You must make any claim under the foregoing warranty to us in writing within 30 days of performance of such Services in order to receive the foregoing remedies.
(a) TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY EXCLUDE AND DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE SPECIFICALLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND QUALITY, THAT THE PLATFORM, THE VRIFY CONTENT OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE PLATFORM, THE VRIFY CONTENT OR SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, WE DO NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM, THE VRIFY CONTENT AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
(b) WE DISCLAIM ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE PLATFORM, INCLUDING CLIENT CONTENT, CLIENT INFORMATION AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES SUCH AS PRESS RELEASES. OTHER THAN BY ENFORCING THE ACCEPTABLE USE POLICY, WE DO NOT CONTROL OR VET CLIENT CONTENT OR PRESS RELEASES AND WE ARE NOT RESPONSIBLE FOR THE CLIENT CONTENT AND WHAT OTHER USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE PLATFORM. WE ARE NOT RESPONSIBLE FOR THE TIMING OF CONTENT MADE AVAILABLE THROUGH THE PLATFORM AND WE SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND THAT ANY CLIENT CONTENT, CLIENT INFORMATION AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. YOU SHOULD APPLY YOUR OWN JUDGMENT IN MAKING ANY USE OF ANY CONTENT, INCLUDING, WITHOUT LIMITATION, THE USE OF ANY INFORMATION CONTAINED THEREIN AS THE BASIS FOR ANY CONCLUSIONS. THIS DISCLAIMER EXTENDS TO ANY AND ALL OF YOUR OBLIGATIONS, UNDER APPLICABLE SECURITIES LAWS, RULES AND REGULATIONS AS WELL AS APPLICABLE STOCK EXCHANGE RULES, INCLUDING WITHOUT LIMITATION OBLIGATIONS RELATING TO TIMELY DISCLOSURE, MISREPRESENTATION, FORWARD-LOOKING STATEMENTS AND THE REQUIREMENTS OF NI 43-101, ALL OF WHICH ARE SOLELY YOUR RESPONSIBILITY. WE EXPRESSLY DENY ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PLATFORM OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
11. Indemnification and third party infringements
11.1. Indemnification by VRIFY. Subject to your compliance with Section 11.3, VRIFY will defend, hold harmless and indemnify you, your Affiliates and your Representatives from and against any and all third-party claims, losses, damages, penalties, liability, and costs, (or agreed settlement amounts in lieu thereof) including legal fees, of any kind or nature which are in connection with or arising out the infringement of a third party’s patent or patents, copyrights, trademarks or any other intellectual property right or trade secrets arising out of or incident to the Platform as permitted hereunder. For clarity, VRIFY’s limitation of liability shall not apply to any infringement of a third party’s intellectual property rights.
We are not liable for any Claim to the extent it arises from:
(a) a modification of the Platform by or at your direction or the direction of an Authorized User;
(c) use of the Platform after we notify you to discontinue use because of an infringement or misappropriation claim;
(d) the combination, operation, or use of the Platform with any other software, program, or device not provided or specified by us to the extent such infringement would not have arisen but for such combination, operation, or use;
(e) your use of the Platform in a manner that is inconsistent with its intended use; or
(f) any Client Content, third party content or Press Releases, accessed through the Platform. For clarity, we are not liable for any Claim to the extent it arises from your failure to verify data.
If the Platform has become, or in our opinion is likely to become, the subject of any such Claim, we may at our option (i) procure for you the right to continue using the Platform as set forth hereunder; (ii) replace or modify the Platform or certain functionalities to make it non-infringing; or (iii) terminate this Agreement.
11.2. Indemnification by Client. You will defend, indemnify, and hold harmless us, our Affiliates, and our respective Representatives from and against all claims, losses, damages, penalties, liability, and costs, (or agreed settlement amounts in lieu thereof) including reasonable legal fees, of any kind or nature which are in connection with or arising out of a claim:
(a) alleging that the Client Content, any Client Information or your use of the Platform infringes or violates the intellectual property rights, privacy rights, rights under securities laws or regulations or other rights of a third party or violates any applicable law or regulation (including but not limited to applicable securities laws and regulations);
(b) relating to, or arising from:
(i) Client Content or Client Information, including but not limited to your failure to verify data;
(ii) any VRIFY Connect sessions;
(iii) any Post-Production Edits;
(iv) any visit by us or our Representatives to the Project Site; or
(v) our use of photographs, videos and recordings of the Project Site or your failure to obtain the required waiver, indemnity and release forms all as contemplated by Section 3.3; or
(vi) your breach of your obligations, representations, or warranties in this Agreement.
11.3. Indemnification Procedure. The indemnified party will (a) give written notice of the claim to the indemnifying party promptly and in any event no later than ten days after the indemnified party receives the claim; (b) give the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle or defend any Claim without the indemnified party’s prior written consent unless it unconditionally releases the indemnified party of all liability); and (c) provide the indemnifying party with reasonable cooperation and assistance at the indemnifying party’s expense.
11.4. Third Party Infringers.
(a) As exclusive licensee of the Client Audio/Visual Materials, VRIFY shall have the right but not the obligation, at its own cost to enforce claims against third parties who are or who may be infringing Client’s intellectual property rights in and to the Client Audio/Visual Materials (each, a “Third Party IP Prosecution”). Client agrees to be joined as a party plaintiff at VRIFY’s option, in which case Client will be permitted to actively participate in the prosecution of any such suit, at VRIFY’s expense. The total cost of any such legal proceeding commenced or defended by VRIFY shall be borne by VRIFY. Any recovery, damages or other payment in connection with any such infringement shall first be used to reimburse VRIFY for reasonable expenses in connection therewith. The balance of the remaining such payment shall be split between Client and VRIFY equally.
(b) If, within three months after having been notified of any alleged infringement giving rise to a Third Party IP Prosecution, VRIFY has not brought an action against the alleged infringer, then Client has the right, but not the obligation, to prosecute at its own expense such Third Party IP Prosecution. In such case, Client shall be entitled to keep any recovery, damages or other payment derived from any such suit, less the expenses thereof, if any, paid by VRIFY. In the event that a declaratory judgment action alleging invalidity of any of the Client Audio/Visual Materials is sought by any person, either Party may, at its option, intervene in such action, all at the expense of such intervening Party.
12. Limitation of Liability
12.1. Limitation of Liability.
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE PROJECT FEES AND PLATFORM FEES PAID BY YOU DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VRIFY, CLIENT OR THEIR REPRESENTATIVES, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE PLATFORM OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL VRIFY BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PLATFORM OR CLIENT’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
(c)THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS ARTICLE 12 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF VRIFY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR WILL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF VRIFY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF VRIFY OR OF ITS REPRESENTATIVES; (II) WILLFUL MISCONDUCT OF EITHER PARTY; OR (III) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
13.1. Feedback. You may from time to time provide suggestions, comments, or other feedback to us with respect to the Platform (“Feedback”). Feedback, even if designated as confidential by you, will not create any confidentiality obligation for us. You will, and hereby do, grant to us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
13.2. Publicity. You agree that we may use your name and logo and may disclose that you are a client of VRIFY in our marketing, advertising, press, promotion, and similar public disclosures, including at trade shows and similar events. In addition to the foregoing, you hereby grant VRIFY a non-exclusive license for the Term to list your name and display your logo as a VRIFY client on the Platform at any time during the term of this Agreement.
You will not disclose the existence or terms of this Agreement, or use the VRIFY name, trademark, trade name or logo in any publicity, news release or disclosure, without our prior express written permission, except as may be required by law or expressly permitted by the terms hereof.
13.3. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other Party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, (i) we may assign this Agreement in its entirety (including all Authorization Forms), without your consent, to our Affiliate, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our shares or assets, and (ii) you may assign this Agreement (and any Authorization Form hereunder) to any purchaser of the Project Site.
13.4. Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect.
13.5. Force Majeure. A Party will not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
13.6. Amendment. We may change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time by posting the revised terms on the VRIFY website. Within two days after posting, we will notify you of any such changes to this Agreement by email at the address you have provided to us. The updated Agreement will be effective on the fifth business day after posting, or on such later date as may be specified in the updated Agreement, and your continued use of the Client Services after any such changes are effective will constitute your consent to such changes. Except for changes made by us as described here, no other amendment or modification of this Agreement will be effective unless set forth: (a) in an Authorization Form issued by VRIFY and signed by you; or (b) in an agreement signed or otherwise agreed in writing by both you and VRIFY.
13.7. Severability. If a court finds part of this Agreement to be invalid, the rest of the Agreement will continue to apply with the minimum changes required to remove the invalid part.
13.8. Notices. VRIFY may give notice to you of operational matters by placing a banner notice on the VRIFY Editor or VRIFY’s website. We may also contact you or your Authorized Users through your VRIFY account or contact information you provide, such as email or telephone. If you fail to maintain accurate account information, such as contact information, you may not receive critical information about the Services, the Platform or this Agreement.
For non-operational matters, VRIFY will send notices to you by email at the address you have provided to us.
For any notice to VRIFY that you give under or regarding this Agreement, you must notify VRIFY by either: (i) email at firstname.lastname@example.org or (ii) via registered mail to the following address: 401 – 353 Water St, Vancouver BC, V6B 1B8; Attention: Legal.
13.9. Waivers. The rights of each Party may be waived only in writing. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
13.10. Remedies. Unless otherwise stated, each Party’s remedies under this Agreement are not exclusive of any other remedies under this Agreement, at law or otherwise.
13.11. Governing Law and Dispute Resolution.
(a) The laws of the Province of British Columbia and Canadian law applicable in British Columbia will govern any dispute, cause of action or claim arising out of this Agreement or your use of our Client Services (“Dispute”), without giving effect to conflict-of-law principles.
(b) If you breach this Agreement or violate our rights or another person’s rights, in addition to any other remedy, we may ask a court for an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions of this Agreement, and you will reimburse us for our reasonable legal fees associated therewith.
(c) If you have any kind of Dispute with us, the exclusive means of resolving it will be by confidential, binding arbitration before a single arbitrator chosen by you and VRIFY. You will give notice of your Dispute to us in writing. If we do not decide together on an arbitrator within 15 days after we receive that notice, we both agree to ask the British Columbia International Commercial Arbitration Centre (BCICAC) to appoint one for us. The arbitration will take place in Vancouver, British Columbia, under the Arbitration Act (British Columbia), and will follow the Domestic Commercial Arbitration Rules of the BCICAC. The arbitrator will have the right to decide how the costs should be divided between us. The arbitrator will have the right to accept whatever kind of evidence they think is appropriate and will have the right to make whatever award they consider fair and equitable, based on legal and equitable principles, including giving an order such as an injunction (to stop one of us from doing something) or an order that you or we pay damages to the other. The arbitrator’s award can be entered into the registry of the British Columbia Supreme Court in Vancouver, British Columbia, and enforced in the same way as a court order if the court in the enforcing jurisdiction allows.
(d) Any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. VRIFY and you each waive any right to a trial by jury.
13.12. Export Compliance. You will not use or access our Client Services if you are located in any jurisdiction in which the provision of our Client Services is prohibited under Canadian, U.S. or other applicable laws (a “Prohibited Jurisdiction”) and you will not provide access to our Client Services to any government, entity or individual located in any Prohibited Jurisdiction. You confirm that you are not named on any Canadian or U.S. government list of persons or entities prohibited from transaction with any Canadian or U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you will not allow Authorized Users to access or use our Client Services in violation of any Canadian, U.S. or other export embargoes, prohibitions or restrictions; and (d) you will comply with all applicable laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located to Canada and the United States.