Canada

INTRODUCTION

Datanest Software Ltd, a New Zealand registered company (we", "us", "our") provides access to the Datanest software, a suite of software programs that allow, for example, Authorized Users (as defined below) to collect, upload, and analyze data; create maps and figures; and produce scientific reports on a project-by-project basis, all as further described herein.

Please read these Terms and Conditions carefully before using Datanest Software. Datanest Software is not intended to be a substitute for professional judgment, and all users (referred to herein as "you") should not act in reliance upon it without first obtaining professional advice as to your particular circumstances.

Your access to and use of Datanest Software is conditional on your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all users of Datanest Software. By accessing or using Datanest Software you agree to be bound by these Terms and Conditions ("Acceptance Date"). If you do not accept any part of these Terms and Conditions, then you may not access or use Datanest Software.

NOTE ON ARBITRATION: PLEASE BE AWARE THAT SECTION 14 OF THESE TERMS CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND DATANEST HAVE AGAINST EACH OTHER WILL BE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION PROVISION WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE CLAIMS TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

NOTE ON AUTORENEWALS: IF YOU PURCHASE A RECURRING SUBSCRIPTION, UPON TERMINATION OF YOUR INITIAL SUBSCRIPTION TERM, YOU WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS YOUR INITIAL TERM AT DATANEST'S THEN-CURRENT FEES FOR SUCH SUBSCRIPTION UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 11 BELOW.

AGREEMENT

1.  DEFINITIONS.

In these Terms and Conditions, unless the context indicates the contrary:

1.1  "Authorized Users" means any agents, employees, or contractors of the Client who are approved by the Client to use Datanest Software.

1.2  "Datanest Software" means the Datanest software suite, and all current and future modules owned and operated by us that provide a platform for Clients to collect data, upload and analyze data, create maps and figures, and/or produce scientific reports on a project-by-project basis. Datanest Software includes, for the avoidance of doubt, the website (e.g., at the domain datanest.earth), and our servers and the Documentation (defined below).

1.3  "Client" means any person or entity who contracts with us to access and/or use Datanest Software.

1.4  "Client Data" means:

1.4.1  any and all Confidential Information, non-public information, data, samples, (including Personal Information) and other material of any nature provided (e.g., uploaded, entered into, access provided to such as through an API, or the like) to us by any Clients or their Authorized Users; and/or 

1.4.2  any and all Confidential Information provided by Client or its Authorized Users to us in order to register, access, and/or use Datanest Software, including any Confidential Information, or any non-public information relating to the Client's employees, agents, or contractors.

1.5.  "Confidential Information" means any information or material relating to present or planned business which has not been released publicly by authorized representatives. Confidential Information also includes all information received under an obligation of confidentiality to a third party.

1.6  "Customization(s)" means a development, enhancement, improvement, or other modification to Datanest Software which is undertaken by us (e.g., at the request of the Client).

1.7  "Documentation" means any user and technical documentation supplied, or to be supplied by us to the Client (e.g., including any software specifications).

1.8  "Fee" or "Fees" means the sum(s) payable by the Client for use of Datanest Software in accordance with Section 11 of these Terms and Conditions.

1.9  "Geographic License Region" means within Canada.

1.10  "Insolvency Event" in relation to a party (e.g., "Insolvent Party") means:

1.10.1  the Insolvent party ceases or takes steps to cease to conduct its principal business in the normal manner; 

1.10.2  the Insolvent party enters into or resolves to enter into any arrangement, composition, or compromise with, or assignment for, the benefit of its creditors, or any class of them; 

1.10.3  the Insolvent party enters into or resolves to enter into any arrangement, composition, or compromise with, or assignment for, the benefit of its creditors, or any class of them;

1.10.4 the Insolvent party is unable to pay its debts when they are due, or is deemed to be insolvent (e.g., under the Bankruptcy and Insolvency Act or any similar or related laws) as determined by us in their sole discretion; 

1.10.5  a trustee is appointed to the Insolvent party, or a receiver, receiver and manager, administrator, custodian, or similar official is appointed over any of the assets or undertakings of the Insolvent party (e.g., during a bankruptcy proceeding);

1.10.6  a petition for involuntary bankruptcy is filed against the Insolvent party, or an order for relief in bankruptcy is entered against the Insolvent party (e.g., pursuant to the provisions of the Bankruptcy and Insolvency Act, or any similar or related laws); or 

1.10.7  the Insolvent party is dissolved, or intends to be dissolved (e.g., based on statements made on behalf of the Insolvent party), or its corporate existence is terminated (e.g., according to the Federal law or the province of incorporation, as applicable).

1.11  "Intellectual Property Rights" includes all past, present, and future registered and unregistered rights conferred under statute, common law or equity in in respect of copyright, designs, circuit layouts, trademarks, know-how, moral rights, Confidential Information, patents, Inventions, discoveries, Trade Secrets, domain names, data rights in databases, and all other proprietary rights. Intellectual Property Rights include all equivalent rights and forms of protection available globally, along with any rights, titles, interests, or licenses associated with the foregoing.

1.12  "Personal Information" means information about an identifiable individual as defined under the Privacy Laws.

1.13  "Privacy Laws" means the Personal Information Protection and Electronic Documents Act (Canada) and applicable Canadian provincial privacy legislation.

1.14  "Sales Invoice" is a document or form that shows details of a sale, including the goods or services sold, the quantity, the Fees, and the amount of sales tax charged. 

1.15  "Terms and Conditions" means these Terms and Conditions.

1.16 "Third Party Software" means any computer software program owned and operated by a third party that we have incorporated or integrated into Datanest Software (e.g., through the use of APIs, or the like) and that we do not or is not otherwise authorized to sub-license to the Client.

1.17 "Trade Secrets" shall mean information, including a formula, code, algorithm, pattern, compilation or combination; program, device, method, technique, process, drawing; cost data, business data or customer data, contracts, or information; or development, sales or business strategies or other information or items that derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 

1.18 "Invention" means procedures, systems, machines, methods, processes, uses, discoveries, apparatuses, compositions of matter, designs or configurations, computer programs of any kind, concepts, or any improvements of the foregoing, discovered, conceived, reduced to practice, developed, made, or produced, alone or with others, whether or not patentable, and shall not be limited to the meaning of "invention" under Canadian and other applicable patent laws.

2.  INTERPRETATIONS.

In these Terms and Conditions, unless the contrary intention appears:

2.1  the singular includes the plural and vice versa;

2.2  a reference to these Terms and Conditions or another instrument includes any variation or replacement of them;

2.3  a reference to a Section number is a reference to a Section in these Terms and Conditions;

2.4  the term "person" includes an individual corporation, partnership, limited liability company, joint venture, an unincorporated body or association, government agency, or any other legal entity recognized under the applicable laws and regulations;

2.5  a reference to a statute, ordinance, code, or other law includes regulations and other instruments under it, as well as any consolidations, amendments, re-enactments, and/or replacements of any of them;

2.6  if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;

2.7  a reference to a month is to a calendar month;

2.8  a reference to a day is to a calendar day;

2.9  a reference to a thing (including any amount) is a reference to the whole and each part;

2.10 the verb "include" (in all its parts, tenses, and variants) is not used as, nor is it to be interpreted as, a word of limitation. Its use is meant to be illustrative rather than restrictive, indicating that the examples or items mentioned are not exhaustive and other similar items may also be included;

2.11 the words "including", "for example", or "such as" do not limit the meaning of the words to which the example relates or examples of a similar kind;

2.12 CAD dollars, dollars, or $ is a reference to the lawful currency of Canada; and

2.13 headings are inserted for convenience and do not affect the interpretation of these Terms and Conditions.

3.  ACCESS TO AND USE OF DATANEST‍

3.1  In consideration of the Client's obligation to pay the Fees under Section 11, we grant to the Client and its Authorized Users a non-exclusive, non-sublicensable, non-transferable, limited license to access and use Datanest Software, including all data, outputs, images, information, reports and other material generated by the Client's use of Datanest Software, in accordance with these Terms and Conditions. All of our rights not expressly granted by a license herein are hereby retained.  

3.2 The Client agrees to and shall require its Authorized Users to use Datanest Software in a manner that complies with all applicable Canadian laws and regulations (including Privacy Laws) and in a manner that does not infringe upon our rights or the rights of any third parties. The Client agrees not to engage in any activities that restrict or inhibit the use and enjoyment of Datanest Software by us or any other users of Datanest Software.

3.3  The Client may not, except to the extent expressly permitted by law, without our prior written permission, in any form or by any means:

3.3.1  allow Datanest Software to be used by any persons other than the Client or its Authorized Users;

3.3.2  adapt, reproduce, copy, store, distribute, print, display, perform, publish, or create adaptions from any part of Datanest Software, except for the purpose of fulfilling the intended purposes for which Datanest Software is being supplied;

3.3.3  use any device, including any software, that interferes with the usual operation of Datanest Software;

4.  use the Datanest Software or our name or branding material to promote the Client's or any third party's business without our express prior written approval;

3.3.5  commercialize, copy, or re-sell any information or materials obtained from any part of Datanest Software; or

3.3.6  assign or subcontract any of its rights or obligations under these Terms and Conditions to any third party;

3.3.7  use the software license outside of the agreed-upon Geographic License Region.

3.4  The Client is responsible for ensuring that:

3.4.1  at all times, it meets the system requirements that are necessary to access and use Datanest Software and that it will take reasonable steps to ensure that any computer used to access Datanest Software is protected against computer viruses and unauthorized access; and

3.4.2  all of its Authorized Users who are approved to use Datanest Software comply at all times with these Terms and Conditions. To the extent any Authorized User breaches these Terms and Conditions, such breaches will be treated as breaches by Client for which Client is directly responsible.

4.  CLIENT DATA

4.1  Some or all of Client Data provided to Datanest Software will be stored either on our cloud server and/or a third party server. Our cloud server and/or third party server are regularly backed up, and we will make reasonable efforts to maintain effective security measures to safeguard Client Data from unauthorized access, use, copying, or disclosure. However, Client acknowledges that we shall not be held responsible for any Client Data that is lost, stolen, copied, deleted, or subject to unauthorized access or use.

4.2  It is the Client's sole responsibility to obtain necessary consents and third-party licenses, to provide necessary notices, and to ensure the accuracy of, and to maintain copies of, any Client Data provided (e.g., entered into, or uploaded to) to Datanest Software and to ensure Client Data can be shared with and used by us in accordance with the requirements of Privacy Laws.

4.3  We are not responsible for Client Data which the Client chooses to provide to us. We do not pre-screen or monitor the content of any Client Data, and in no event shall we be liable for any claims made in relation to the Client Data including, but not limited to, any misleading statements made and/or incorporated into any Client Data. 

4.4  We shall process Client Data in accordance with applicable laws and these Terms and Conditions.

5.  REGISTRATION AND SECURITY OF PASSWORDS

5.1  By signing up and/or registering for Datanest Software, Client agrees that all information provided during the registration process is true and accurate, and that Client will regularly update this information so that the information remains current, complete, and accurate. All registration information will be processed in accordance with our Privacy Policy, which can be located at: https://www.datanest.earth/privacy-policy.

5.2  During the registration process, Client will be issued a password for Datanest Software to operate its Client account. Client agrees to be fully responsible for all activities related to its Client account, including the actions of all Authorized Users, and for maintaining the confidentiality and security of its password and account access information. If Client has any reason to believe that its password or account access information has been obtained by an unauthorized person or party without Client's (or any Authorized User's) consent, Client must immediately inform us to disable the Client's account.

6.  OWNERSHIP OF INTELLECTUAL PROPERTY

6.1  Client acknowledges that we retain ownership of Datanest Software and any Customizations, including all related Intellectual Property Rights and any and all other rights, except for aspects related to Third Party Software. 

6.2  The Client shall notify Datanest Software as soon as reasonably practicable if it becomes aware of:

6.2.1  any infringement of any of our Intellectual Property Rights;

6.2.2  any defect in its use of Datanest Software; or

6.2.3  any material matters that may be of concern to the Client concerning Datanest Software that come to the attention of the Client.

6.3  The Client acknowledges and accepts that we may create anonymized statistical data based on some or all provided Client Data and/or Confidential Information related to Client's usage of our services (e.g., such as Datanest Software), including through aggregation. For example, once anonymized, we may use the anonymized data for our own purposes, such as to provide and/or improve our services, to develop new services and/or product offerings, to identify business trends, and/or for other uses.

6.4  The Client acknowledges and accepts that by entering or uploading its Client Data into our services (e.g., Datanest Software), the Client grants us, our affiliates, and related third party contractors and partners a worldwide, non-exclusive, royalty-free, fully paid-up, license to access, use, process, copy, distribute, transmit, perform, export, store, analyze, display, and back up all Client Data submitted through our services, including the Personal Information of Authorized Users. For example, this license allows us to: enable the Client to use and access our services, including Datanest Software; improve, develop, and protect our services; create new services; communicate with the Client about its subscription and/or product access; send the Client information that may be of interest based on configured marketing preferences; and/or use Client Data for any other purpose related to the provision of Datanest Software and/or related services to the Client. The Client represents and warrants that it has secured all rights in and to Client Data, including from its Authorized Users, as may be necessary to grant this license.

6.5 Client acknowledges that by providing us with custom branding or images, such as a company logo or other graphic, to be displayed to Authorized Users within Datanest Software (collectively and individually "Customer Customization Content"), if we agree to incorporate such Customer Customization Content into user interfaces or other content displayed to the Client's Authorized Users within Datanest Software or in connection with the services (e.g., at your request), Client hereby grants us, our affiliates, and related third party contractors and partners a worldwide, non-exclusive, royalty-free, fully paid-up, license to access, use, process, copy, distribute, transmit, perform, export, store, analyze, display, and back up such Customer Customization Content as reasonably necessary to integrate display of such Customer Customization Content to the Client's Authorized Users (e.g., in association with use of Datanest Software). However, Client shall retain all right, title interest, and associated goodwill in such Customer Customization Content and represents and warrants that it has secured all rights necessary to grant this license.

6.6  If Client or its Authorized Users provide us with any feedback or suggestions regarding Datanest Software or associated applications or our other products or services, Client grants us (on behalf of itself and all of its Authorized Users and other Client personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to the Client, any Authorized User, or other Client personnel.

6.7  The Client and its Authorized Users shall not:

6.7.1  remove or modify any program markings or any notice of our proprietary rights;

6.7.2  make Datanest Software available in any manner to any third party (unless such access is expressly permitted by Datanest Software for the specific license);

6.7.3  modify, make derivative works of, reverse compile or reverse engineer, any part of the Datanest, or access Datanest in order to build or support products or services competitive to Datanest Software; 

6.7.4  use Datanest Software to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;

6.7.5  interfere with or disrupt the integrity or performance of Datanest Software or attempt to gain unauthorized access to Datanest Software or its related systems or networks;

6.7.6  use any measures to mislead us or our other clients, or otherwise take advantage of Datanest Software;

6.7.7  upload Customer Customization Content which results in a violation of a third party's rights under applicable laws (including Privacy Laws); or

6.7.8  license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timeshare, or otherwise make Datanest Software, or our other programs or material available to any third party other than as expressly permitted by us or otherwise permitted under these Terms and Conditions.

6.8 PROTECTION OF CONFIDENTIAL INFORMATION.  

6.8.1  Client understands and acknowledges that we have developed or acquired valuable Confidential Information that is not generally known to our competitors or to the public. Our Confidential Information has been developed or obtained by and/or through the investment of significant time, effort, and expense, and that our Confidential Information is a valuable, special, and unique asset which provides us with a significant competitive advantage and needs to be protected from improper disclosure. Client recognizes and further understands that our Confidential Information may be disclosed to Client by and through its use of our software services. Client expressly acknowledges that we would not permit Client to have access to our Confidential Information but for the Client's agreement to be bound by these Terms and Conditions. Client further agrees that our Confidential Information is and will remain our exclusive property. 

6.8.2  Client agrees to hold all of our Confidential Information in confidence and that he/she is not authorized to and will not at any time publish or disclose or allow to be published or disclosed to any person who is not our employee or entity, unless such disclosure is authorized in writing by us. Furthermore, Client will not for any reason copy or modify any of our Confidential Information, unless authorized in writing by us.

6.8.3  In accordance with these Terms and Conditions, we agree to hold Client's Confidential Information in confidence and will not at any time publish or disclose or allow to be published or disclosed to any person who is not an employee or Authorized User of Client, unless such disclosure is within the scope of these Terms and Conditions or is otherwise authorized or approved by Client. For the purpose of clarity, Section 6.8 does not limit the rights granted to us by any other section of these Terms and Conditions (e.g., Section 6).

7.  THIRD PARTY INFORMATION

7.1  We store and provide Client with access to a wide range of information, some of which is or has been created or provided by third parties, which can be utilized by Client to assist them to analyze, assess, and customize its Client Data (including but not limited to a number of national and international environmental guidelines) (hereinafter referred to as "Third Party Information"). 

7.2  Client agrees that it shall exercise its own judgment and discretion when relying on any Third Party Information obtained through Datanest Software. Without limiting Section 12, we shall not be held responsible for any errors, inaccuracies, or omissions in the Third Party Information or any consequences resulting from the Client's use or reliance of such Third Party Information.

8.  THIRD PARTY SOFTWARE

8.1  We support integrations with certain Third-Party Software and we will review any Client request for integration or use of Third Party Software which is not already within the Datanest Software ecosystem.  Client acknowledges that access to and use of Third-Party Software is governed by the terms of use of the applicable provider and the warranties, indemnities, service commitments provided by us in these Terms apply only to our proprietary software and services.  Further, we have no obligation to monitor or maintain any Third-Party Software and may remove or restrict access to any Third-Party Software at our sole discretion and without prior notice in our sole discretion.   WE DO NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY THIRD-PARTY SOFTWARE AND WE SHALL NOT BE A PARTY TO ANY TRANSACTION THAT CLIENT MAY ENTER INTO WITH ANY PROVIDER OF THIRD-PARTY SOFTWARE.  WE WILL NOT BE LIABLE FOR ANY TYPE OF CONTENT EXCHANGED BY MEANS OF THIRD-PARTY SOFTWARE AND WE DISCLAIM ALL LIABILITY RELATED TO THIRD-PARTY SOFTWARE.

9.  CONTINUITY OF SERVICE

9.1  We will use reasonable efforts to provide access to Datanest Software on a continuous and/or constant basis (e.g., more than 99% of the time), except for planned downtime that may be required for system maintenance, repairs, and updates.  However, in the unlikely event that access to one or more of our services (e.g., Datanest Software) by Client or its Authorized Users is limited or restricted, either due to our actions or otherwise, we shall not be liable for any actual, ancillary, current, or estimated future losses or damages resulting from Client's delay or loss of access to our software services or our loss of Client Data (if applicable), including but not limited to acts of nature, power outages, unauthorized intrusions or breach, or Internet service disruptions.

9.2  We reserve the right to limit, suspend, or modify Client's access to, and use of, Datanest at any time, with or without notice, in any of the following circumstances:

9.2.1  periodic maintenance;

9.2.2  updates or software upgrades;

9.2.3  where a threat has been identified to the security of Datanest Software;

9.2.4  a failure by the Client to make payment of any Fee payable to us on or by the associated due date;

9.2.5  a breach of these Terms and Conditions by the Client, as determined by us in our sole discretion;

9.2.6  a requested Customization by the Client; 

9.2.7  as directed by court order or legislative requirement; or 

9.2.8  events beyond our control that prevent the provision of Datanest Software.

9.2.9 We will use reasonable efforts to notify Client in advance of any scheduled suspension or alteration of the Client's access to and/or use of Datanest Software due to any of the reasons listed in Section 9.2.

10.  PRIVACY

10.1  We collect information from and about the Client and Authorized Users, including but not limited to Client/Authorized Users' names and contact details, upon registering for Datanest Software. Client voluntarily provides such information. We may also collect and store information about the Client's use of Datanest Software, such as the pages accessed and how many times the Client accesses Datanest Software. 

10.2  All Client Data, including the information referred to in Sections 4.1 and 10.1, will be stored on our cloud server or on a third-party server. Any such information will be used by us solely for operation of Datanest Software, to respond to technical or service problems, for billing purposes, or to exercise its rights under these Terms and Conditions. We will not disclose any Client Data to third parties without first obtaining the Client's consent, except as required to perform its obligations, to exercise its rights under these Terms of Service, or as permitted by law.

11.  FEES AND TERM

11.1  We agree to grant Client the right to access and use Datanest Software in consideration of Client's payment of the relevant and agreed upon Fees. Certain features of Datanest Software may require payment of one-time Fees while other features may require Client to pay a recurring subscription ('Subscription") Fee to received continued and full access to Datanest Software and/or take advantage of Customizations ("Subscription Fee"). 

11.2  Client's Fee for using Datanest Software will be determined by a selected subscription type at the time of subscription. For example, each pricing plan generally includes a monthly Subscription Fee, with a limit on the number of projects that can be produced within a specific timeframe and a number of Authorized Users with access to Datanest Software. Also, for example, each pricing plan may vary by region, and prices are subject to change over time. In the event of any pricing adjustments, Client will be provided with at least thirty (30) days notice prior to any changes being made. All such changes will take effect thirty (30) days following the date of notice.

11.3  The Subscription term for the Datanest Software shall be twelve (12) months beginning on the Acceptance Date, unless otherwise agreed by the parties in writing.

11.4  Subscription Fees are billed on the first day of each Subscription period billing cycle until the end of the Subscription period. Client must maintain accurate payment information and notify us of any changes to billing information. If Client's payment method expires, is invalid, or is otherwise not able to be charged for Subscription Fees for any reason, Client's Subscription may not be continued or renewed (as applicable). Client must provide a valid payment method within ten (10) days of a missed Subscription Fee payment to continue accessing Datanest Software without interruption. At our discretion, we may collect Subscription Fees via invoice, which are payable within thirty (30) days of receipt. 

11.5  Upon the expiry of Client's initial Subscription period, on the day the initial Subscription period expires, Client's Subscription shall be automatically renewed for an additional term of the same length as the initial Subscription period. Client will be charged in full at the then-current price for the Subscription for each such renewed Subscription period.

11.6  If Client's modification to the Subscription plan results in changes to Subscription Fees, the new Subscription Fees will be effective and billed on the first day of the subsequent Subscription billing cycle. Client acknowledges and agrees that downgrading a Subscription plan may cause the loss of access to certain Datanest Software features or to Customizations.

11.7  Client Data provided to Datanest Software will be archived for at least 365 days from the project establishment date. If Client requires any Client Data to be archived for a period greater than 365 days, then Client may request extended storage for an additional storage Fee.

11.8  In some situations, we may provide Client with an option to pay some or all Fees by credit card. If Client chooses to pay Fees by credit card (e.g., through a third-party payment services provider), such payments are subject to  any applicable terms of service(s) of that third party. We shall not be responsible for any third party terms and conditions contained therein. The Client is solely responsible for the payment of any applicable taxes or transaction costs associated with payment of the Fee.

11.9  If we do not receive payment of the Fee within the specified timeframe (e.g., as stated in the Sales Invoice), we may, at our discretion, limit or suspend Client's (including any of Client's Authorized Users) access to, and use of, Datanest Software, until payment is received. This limitation or suspension will be without prejudice to Section 15 and provided that the relevant Fees are not in dispute. Any incurred Fees not received by their due date (except for Fees then under reasonable and good faith dispute) may accrue late charges at the rate of 1.5% of the outstanding balance per month (18% per annum) or the maximum rate permitted by law (whichever is lower), from the date payment was due until the date paid.

11.10 All Fees and other charges are exclusive of any and all taxes and duties assessed by applicable governmental authorities ("Tax"), apart from Taxes based on our net income. The Client will pay the Tax at the prevailing rate on the amount of the Fee at the same time and in the same manner as the Fee is payable.

11.11 Us, our affiliates, and related third party contractors and partners may, at our discretion, offer trials to use Datanest Software for a specified time period and without payment or at a reduced promotional rate (a "Trial"). We reserve the right, in our sole and absolute discretion, to determine Client's eligibility for a Trial, and, subject to applicable laws, may discontinue or modify a Trial or require Client to pay Fees for continued use of the Trial service at any time without prior notice and without liability.  Additional terms and conditions may be applicable to the Trial and any such terms and conditions will be made available to Client at the time of Trial registration and will be incorporated into these Terms and Conditions by reference. 

11.12 Clients may request a Customization of Datanest Software for their particular use. Any Customizations may be subject to additional Fees. A Fee proposal will be issued by us to Client at the time of the Customization request to indicate the costs associated, if any, with the Customization.

11.13 In the event that Client disputes any amount in a Sales Invoice issued under Section 11, the Client shall:

11.13.1  notify us as soon as reasonably possible, identifying the amount in dispute and the reasons for the dispute; and

11.13.2  pay the undisputed portion of the balance of the Sales Invoice by the specified due date.

12.  REPRESENTATIONS AND WARRANTIES

12.1  Each party warrants that (a) it has the legal power to enter into these Terms and Conditions; and (b) it has all rights and licenses necessary to perform its obligations hereunder and has the rights to grant the licenses contemplated hereunder. 

12.2  Client acknowledges and agrees that use of Datanest Software is at the Client's own risk. Except as expressly provided in Section 12.1, Datanest Software is provided on an "as is" and "as available" basis and is provided by us without any warranties of any kind, either express or implied. To the fullest extent permissible by law, we do not warrant that:

12.2.1  access to Datanest Software will be uninterrupted, secure, or error free and that any errors or defects will be corrected;

12.2.2  Datanest Software will be suitable for the Client's particular purpose, or for any other purpose;

12.2.3  Third Party Information made available via Datanest Software, which is used or accessed by the Client, is accurate, adequate, current, complete, or suitable for the Client's intended use;

12.2.4  all data, outputs, images, information, reports, results, and other material generated by the Client's use of Datanest Software are fit for the Client's particular purpose, reliable, or accurate; and

12.2.5  any results obtained or generated from Datanest Software will be in accordance with the Client's expectations.

12.3  The Client warrants that it has independently assessed and determined the suitability of Datanest Software for its intended purposes relying solely on its own skill and judgement. The Client acknowledges that it has not relied on any representation, or description, illustration, or specification contained in any document, including the Documentation, or any publicly available material produced by us in our assessment of the suitability of Datanest Software for its intended purposes.

13.  LIMITATION OF LIABILITY AND INDEMNITY

13.1  We shall not be liable to the Client (or any third party), for any indirect, special, incidental, or consequential damage (including loss of business, revenue, profits, use, privacy, data (including Client Data), goodwill, lost revenues, profits, savings, or other economic advantage), whether or not  we have been advised of the possibility of such damages, arising from or related to:

13.1.1  Client's use of, or inability to access and use our services (e.g., Datanest Software);

13.1.2  any failure of performance, error, omission, interruption, defect, delay in operation of our services (including as a result of third parties or Third Party Software);

13.1.3  computer virus or communication line failure;

13.1.4  theft, destruction, unauthorized access, or alteration of our services (e.g., Datanest) or any of its contents including, without limitation, Client Data;

13.1.5  any error or inaccuracy in or damages resulting from:

13.1.5.1  Client Data provided to us (e.g., through Datanest Software), including any misleading statements made and/or incorporated into any Client Data;

13.1.5.2  Third Party Information stored, accessed, or used by the Client within our services (e.g., Datanest Software); or

13.1.5.3  any data, outputs, images, information, reports, results, and other material generated by the Client's use of our software services (e.g., Datanest Software);

13.1.6  the Client's use of any information (including Third Party Information), data, outputs, images, information, reports, and other material accessed, analyzed, or generated by the Client's use of our services (e.g., Datanest Software);

13.1.7  any unauthorized access to the Client's account or use of the Client's password; or

13.1.8  any cause or event reasonably beyond our control.

13.2  Notwithstanding anything to the contrary in these Terms and Conditions, in no event shall our aggregate liability to the Client, whether arising in contract, tort (including negligence), equity, or otherwise, exceed, in aggregate, the total amount of any Fees paid by the Client for the specific project in Datanest Software during the 12 month  period before the event that has given rise to such liability, except our total aggregate liability  for damages arising out of or related to Trial services or software is limited to $100.

13.3  As a condition of the Client's access to and use of our services (e.g. Datanest Software), Client agrees not to breach these Terms and Conditions. The Client agrees to defend, indemnify, and hold harmless and keep us, our affiliates, and related parties indemnified against any claim, proceeding, damage, liability, loss, cost or expense (including legal costs), whether arising in contract, tort (including for negligence), or otherwise arising out of or in connection with:

13.3.1  any breach by the Client of its obligations under these Terms and Conditions;

13.3.2  any failure by the Client to take necessary steps to prevent unauthorized use of Datanest Software; 

13.3.3  breach of a third party's Intellectual Property Rights or rights under Privacy Laws;

13.3.4  claims arising in connection with Client Data, Customer Customization Content, Third Party Information or Third Party Software; and/or

13.3.5  any willful, unlawful, or negligent act or omission of the Client in relation to its access and use of Datanest Software.

14.  CHANGES TO THESE TERMS AND CONDITIONS

14.1  We may need to update, modify, or amend these Terms and Conditions from time to time, including to accurately reflect the access or uses of our products and services, and so we encourage Clients to check them regularly for any updates. We will provide Clients with notice of any material changes to these Terms and Conditions. Any such revisions to these Terms and Conditions shall become effective thirty (30) days following the date of the notice. By continuing any access or use of any of our services (e.g., Datanest Software) for any purpose after the effective date of an update to these Terms and Conditions, Client agrees to be bound by them. If Client does not agree to the updated Terms and Conditions, Client shall stop all access or use of our products and/or service for any and all purposes. 

14.2  Furthermore, any updates to Section 15 (Arbitration) of these Terms and Conditions will apply only to disputes that arise after notice of the update takes place.

15.  ARBITRATION

15.1  Client agrees to resolve any claims relating in any way to these Terms and Conditions, your use of Datanest Software, or any aspect of your relationship with us ("Claim"). This provision does not cover any Claims relating to violations of either party's Intellectual Property Rights, including, but not limited to, copyright infringement, patent infringement, trademark infringement, violations of Confidential Information or trade secrets, or efforts to interfere with us or engage with our services (e.g., Datanest Software) in unauthorized ways. If a Claim is not subject to arbitration, Client agrees that the claim must be resolved exclusively in the Toronto, Ontario, Canada, and that you submit to the personal jurisdiction in such court(s) for the purpose of litigating any such claim.

15.2  Client agrees that, by entering into this arbitration provision, all parties are waiving their respective rights to a trial by jury or to participate in a class or representative action. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. If there is a final judicial determination that any particular Claim (or a request for particular relief) cannot be arbitrated, then only that Claim (or only that request for relief) may be brought in court. All other Claims (or requests for relief) will remain subject to this Section 15. All issues are for an arbitrator to decide, except that only a court may decide issues relating to the scope or enforceability of this arbitration provision or the interpretation of the prohibition of class and representative actions. If any party intends to seek arbitration of a Claim, that party must provide the other party with notice in writing. The arbitration will be governed by the AAA's Commercial Arbitration Rules ("AAA Rules"), as modified by these Terms and Conditions, and will be administered by the AAA. If the AAA is unavailable, the parties will agree to another arbitration provider or the court will appoint a substitute. The arbitrator will not be bound by rulings in other arbitrations in which you are not a party. To the fullest extent permitted by applicable law, any evidentiary submissions made in arbitration will be maintained as confidential in the absence of good cause for its disclosure. The arbitrator's award will be maintained as confidential only to the extent necessary to protect either party's trade secrets or proprietary business information or to comply with a legal requirement mandating confidentiality. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA Rules. If Client does not wish to be bound by this provision (including its waiver of class and representative claims), Client must notify us as set forth below within thirty (30) days of the first acceptance date of any version of these Terms and Conditions in a letter mailed to our address at: Unit 15, 14 Broad Street, Christchurch, New Zealand 8023.

16.  TERMINATION

16.1  We reserve the right to, in our sole discretion, suspend, terminate, or withdraw the Client's access and use of our software's services (e.g., Datanest Software) at any time without prior notice if (without limitation):

16.1.1  the Client has breached these Terms and Conditions or has engaged in fraudulent activities;

16.1.2  the Client dies, becomes bankrupt, commits an act of bankruptcy, or, if the Client is a corporate entity, experiences an Insolvency Event;

16.1.3  we withdraw Datanest Software as a software product;

16.1.4  have reasonable grounds to take such action (reasonable efforts will be made to inform the Client of the circumstances of withdrawal, termination, or suspension); and/or

16.1.5  we are complying with a court order or legislative requirement.

16.2  Upon termination of these Terms and Conditions between us and Client, all rights and obligations of the parties shall immediately cease to have effect, except for the following:

16.2.1  the termination of these Terms and Conditions is without prejudice to the rights and obligations that the parties have accrued up to and including the date of termination. This includes payment of any outstanding Fees (e.g., as described in Section 11); 

16.2.2  Our ownership of Datanest Software, including all related and additional Intellectual Property Rights provided for by these Terms and Conditions (e.g., as described in at least Sections 6.1-6.7); 

16.2.3  Protection of Confidential Information (e.g., as described in at least Section 6.8); 

16.2.4  our limitation of liability and indemnity provisions (e.g., as described in at least Section 13); 

16.2.5  Arbitration (e.g., as described in at least Section 15) and

16.2.6  This Section 16.2;

16.2.7  Section 17 (General); and

16.2.8  any other or additional sections which, by their nature, are intended to survive termination of these Terms and Conditions, shall remain in effect and survive termination.

17.  GENERAL

17.1  No Waiver. Our failure or delay to exercise or enforce any right available to it under these Terms and Conditions does not constitute a waiver of those rights.

17.2  Entire Agreement. These Terms and Conditions constitute the entire agreement between us and Client and supersede all prior agreements, arrangements, understandings, and representations (whether oral or written) given by or made between us and the Client, relating to the subject matter of these Terms and Conditions. The Client acknowledges having been given the opportunity to read and review these Terms and Conditions. The Client understands and agrees that none of our representatives have been authorized to enter into any agreement or commitment with the Client that is inconsistent in any way with these Terms and Conditions. 

17.3  The rights and remedies provided in these Terms and Conditions are cumulative and not exclusive of any rights or remedies provided by law or under these Terms and Conditions.

17.4  Severability. If any provision of these Terms and Conditions becomes or is held to be illegal, invalid, or unenforceable in any respect, that provision shall be modified to the extent necessary to make it legal, valid, and enforceable. If such provision cannot be modified, it shall be deemed severed from these Terms and Conditions. The illegality, invalidity, or unenforceability of any provision shall not affect the legality, validity, and enforceability of the remaining provisions of these Terms and Conditions.

17.5  Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the Federal laws applicable therein , without regard to conflict of laws provisions.

17.6  Emails. The parties may use emails to satisfy written approval and consent requirements under the Terms and Conditions.

17.7  Assignment. Neither party may assign any part of these Terms and Conditions without the written consent of the other, except that we may assign these Terms and Conditions to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, shares or assets at any time. Any other attempt to assign is void.

17.8  Subcontracting. We may subcontract obligations under the Terms and Conditions but will remain liable to Client for any subcontracted obligations.

17.9  No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.

17.10 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

17.11 Equitable Relief. Nothing in this Agreement will limit our ability to seek equitable relief.

17.12 Headers. Headings and captions used in the Terms and Conditions are for reference purposes only and will not have any effect on the interpretation of the Terms and Conditions.

Last Updated: 15 October 2024 (4004243.v1)

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