NŌWN POS MERCHANT TERMS & CONDITIONS Dated: April 30th, 2018
THE LEGAL AGREEMENT BETWEEN YOU, (“MERCHANT”) AND LUCOVA INC. (“LUCOVA” OR “NŌWN”) SET OUT BELOW GOVERNS YOUR USE OF THE SERVICES PROVIDED BY LUCOVA INC. PLEASE READ THE TERMS CAREFULLY BEFORE USING THE NŌWN SERVICES. BY ACCESSING, USING OR CONTINUING TO USE THE NŌWN SERVICES, OR CLICKING “AGREE”, YOU ARE INDICATING YOUR INTENTION TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT INCLUDING POLICIES AND GUIDELINES INCORPORATED BY REFERENCE INTO THE TERMS. IF YOU DO NOT AGREE WITH THE TERMS IN THEIR ENTIRETY, YOU MAY NOT USE THE NŌWN SERVICES.
Lucova Inc. (“Lucova”, “Nōwn”, “we”, “us” and terms of similar meaning) provides the Nōwn POS Application (the “Nōwn POS”) and Nōwn Customer Mobile Application (the “Nōwn App”), its web sites www.nownpos.com and www.benown.ca respectively (the “Sites”), and all associated services and add-ons including loyalty program, mobile pre-order, mobile payments, promotions, customer identity and third party services (collectively the “Nōwn Services”) to you subject to the Terms and conditions of use (the “Terms”). These Terms apply to: (i) your use of the Nōwn Services; (ii) the use of Nōwn Services by third parties authorized through your Nōwn account to use the Nōwn Services and your customer generated content (as defined below) through the Nōwn Services; and (iii) the use by such authorized users of any additional software, hardware or other services provided, referred, or recommended by us or third parties as part of or for use with the Nōwn Services.
The Nōwn POS provides the full functionality of a cloud-based point-of-sale (POS), real-time reports, loyalty program, mobile pre-order, mobile payments, promotions and customer identity. The Nōwn POS is the only pos that puts the focus on the person behind the purchase.
In these Terms, you and your staff members to whom you give access to your Nōwn POS account are called the “Merchant” or “Merchants”, and your customers including those who use the Nōwn App are called the “Customers”. Users of Nōwn POS or Nōwn App, whether they are Merchant or Customers, are called the “Users”.
You should from time to time review the Terms and any policies and documents incorporated in them to understand the terms and conditions that apply to your use of Nōwn Services. The Terms will always show the ‘last updated’ date at the top. If you do not agree to any amended Terms, you must stop using Nōwn Services. If you have any questions about the Terms, please email us at email@example.com.
The Nōwn Services are for your own use only. You may not resell, host, publish, lease or provide them in any other way to anyone else, except as expressly permitted by Lucova or under this Agreement.
You wish to engage Lucova to provide the Nōwn Services on the terms set out in this Agreement.
1.1. You represent and warrant that you have the full right, power, and authority to enter into this agreement and to produce and present your goods and/or services as you have advertised and present the Nōwn experience as provided in these Terms.
1.2. You confirm that you are compliant and will be compliant throughout the term of this agreement with all applicable laws and regulations of every applicable government authority, and the performances of it will not violate or infringe on any right of any person, firm or corporation.
1.3. You represent and warrant that you own all right, title and interest to the User Content of Merchant (as defined herein) and have the right to grant licenses to the User Content of Merchant as stated in the Terms and the User Content of Merchant does not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party.
1.4. You represent and warrant that, if required by applicable law, you are registered for sales and use tax collection purposes in all jurisdictions in which your goods and services will be provided.
1.5. You agree that in providing your goods and/or services through the Nōwn Services, you shall not impose any extra or additional fees, charges, conditions or restrictions that contradict or are inconsistent with the Terms.
2.4. Your access to Customer’s Personal Information and financial transaction data from the Nōwn Services shall be provided solely to the extent necessary for you to use the Nōwn Services. You shall not use any such Customer Personal Information for any purpose other than for offering the Nōwn Services to your Customers, nor shall you combine such Customer Personal Information with any other data you or any third party services you maintain.
3. Registration Data; Account Security
3.1. If you register for an account on Nōwn Services, you agree to (a) provide and maintain accurate, current and complete information as may be prompted by any registration forms on Nōwn Services (the “Registration Data”); (b) maintain the security of your password/s; (c) maintain and promptly update the Registration Data, and any other information you provide to us, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information or data you provide to us or through the Nōwn Services. You are responsible for all activity on your Nōwn account, and for charges incurred by your Nōwn account.
4. Fees; Charges; Taxes
4.1. Fees and any other charges for the use of Nōwn Services are described on the Site. They may change from time to time. If they do change, your continued use of Nōwn Services after the change indicates your agreement with the new fees and charges after the effective date of the change. Any change to fees and other charges will not be applicable to the billing period in which the change occurs but shall apply to any subsequent renewal (the “Fees”).
4.2. If you have registered with and process your credit and debit card payments with Global Payments Canada GP (the “Global”), Global will set the Fees and invoice you directly and you will be responsible for such Fees directly with Global in addition to any other fees, charges, costs or payments that maybe charged by Global.
4.3. You are responsible for all taxes applicable to the fees and charges in any applicable jurisdiction.
4.4. All pre-paid license, subscription, or other fees (including professional services such as installation and training) are non-refundable and subject to any additional payment or other terms or conditions provided for in the applicable Quotation or order documentation.
4.5. Professional services must be booked 15 days in advance. Payment is required prior to booking professional services. Cancellation or rebooking must be made more than 3 days before professional services commence or will be subject to $100 change fee. If you cancel or change dates you will be given a credit (less change fee) for such services which must be used by the latest of 60 days from the License Start Date and the signed Quotation, after which the credit expires and constitutes non-refundable payment to Lucova.
5. Ownership, Copyright and Trademarks
5.1. The content available through Nōwn Services, including all information, content, data, logos, marks, interfaces, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is called the “Nōwn Content”. Content provided by Users, whether they are Merchants, Customers or other Users, is called “User Content” for that applicable user. For example, data about your customers transactions at your store is User Content of Merchant and data about your menu, operations that you provide to us is User Content of Merchant, while content that a Customer enters into the Nōwn App is User Content of that Customer.
5.2. User Content is that User’s property. Our only right to that User Content is the limited licenses to it granted in the Terms and as necessary to provide the Nōwn Services.
5.3. Other than the User Content, all content and all software available on the Nōwn Services or used to create and operate the Nōwn Services is the property of Lucova or its licensors, and is protected by Canadian and international patent, trademark, and copyright laws, and all rights to the Nōwn Services, such content and such software are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in the Nōwn Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation of them by Lucova.
5.4. You shall not prepare any derivative work based on the Nōwn Content and you shall not translate, reverse engineer, decompile or disassemble the Nōwn Services.
5.5. We may use and shall be the exclusive owner of any feedback, suggestions, improvements or ideas (“Feedback”) you provide or have provided to us regarding the Nōwn Services. This applies to Feedback provided to us at any time in any format. You assign all intellectual property rights in Feedback to Lucova immediately upon communication of such Feedback to Lucova or its representatives. We may use Feedback for any purpose without compensation or attribution to you and you forever waive and surrender any and all rights in Feedback including any moral rights thereof.
5.6. If you authorize third parties to access your User Content through Nōwn Services, you agree that we are permitted to provide to them the User Content, and also agree that we have no responsibility or liability for their use of such User Content. Any such access shall be governed by any applicable end user or API agreements or terms applicable to such third party and may be subject to fees charged by such third party.
5.7. Without limiting the generality of the foregoing, you are responsible for all business continuity, data loss, business interruption, or other risks that may arise out of your use of the Nōwn Services. Lucova denies, disclaims, and waives any liability for any loss that may occur arising through use of the Nōwn Services, including, but not limited to, loss of data, business interruption, incorrect calculation of any amount, including taxes or amounts due from your customers, or loss of customer goodwill.
5.8. The Nōwn Services are provided on an “as is” basis. You acknowledge and accept all risks associated with using the Nōwn Services and release Lucova from any claim or liability in relation thereto.
5.9. Your data and User Content is your responsibility. We have no responsibility or liability for it, or for any loss or damage your User Content may cause to you or other people.
6. Your Limited License of Your User Content to Lucova
6.1. We do not claim any ownership interest or rights in your User Content except as provided for under the Terms, but we do need the right to use your User Content to the extent necessary to provide the Nōwn Services, now and in the future.
6.2. Therefore, by posting or distributing User Content to or through the Nōwn Services, you: (i) grant Lucova and its affiliates and subsidiaries a non- exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content, in the manner in and for the purposes for which the Nōwn Services from time to time use such User Content; and (ii) represent and warrant that you own and control all of the rights to the User Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that User Content, to or through the Nōwn Services, and the use and posting or other transmission of such User Content does not violate the Terms and will not violate any rights of or cause injury to any person or entity.
6.3. If your User Content is intended for the use of other Users you also grant us and our affiliates and subsidiaries and partners a non-exclusive, royalty-free, transferable right to sublicense such User Content to such Users for their use in connection with their use of the Nōwn Services in accordance with all applicable privacy laws and regulations.
6.4. These licenses from you are non-exclusive because you have the right to use your User Content elsewhere. They are royalty-free because we are not required to pay you for the use of your User Content on the Nōwn Services. They are transferable because we need the right to transfer these licenses to any successor operator of the Nōwn Services. Our rights to “modify, adapt, translate, and create derivative works from” are necessary because the normal operation of the Nōwn Services does this to your User Content when it processes it for use in the Nōwn Services.
7. Our Limited License of Content to You
7.1. Lucova grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access the Nōwn Services and to view, copy and print the portions of the Nōwn Content available to you through the Nōwn Services for the limited purpose of using the Nōwn Services as contemplated by this agreement. Such license is subject to the Terms, and specifically conditional upon the following: (i) you may only view, copy and print such portions of the Nōwn Content for your own use as contemplated by the Nōwn Services; (ii) you may not modify or otherwise make derivative works of the Nōwn Content, or reproduce, distribute or display the Nōwn Content except as expressly permitted in the Terms; (iii) you may not remove or modify any copyright, trademark, or other proprietary notices that have been placed in the Nōwn Content; (iv) you may not use any data mining, robots or similar data gathering or extraction methods; and (v) you may not use Nōwn Services or the Nōwn Content other than for their intended purpose. You may not assist any third party in carrying out these prohibited activities. When you use Nōwn Services to publish any loyalty program, menu, online ordering or similar functionality, a Nōwn logo or similar attribution with link to nownpos.com or benown.ca maybe installed.
7.2. Except as expressly permitted above, any use of any portion of the Nōwn Content without the prior written permission of its owner is strictly prohibited and may result in the termination of the license granted in this Section without notice, and immediate termination of these Terms and your account with us. Any such unauthorized use may also violate applicable laws, including without limitation patent, copyright and trademark laws. Unless explicitly stated herein, nothing in the Terms may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license in this Section is revocable by Lucova at any time without notice or warning.
7.3. You represent and warrant that your use of the Nōwn Services and the Nōwn Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law or regulation.
7.4. To request permission for uses of the Nōwn Content not included in this license, you may contact us at firstname.lastname@example.org.
8. Using the Nōwn Services and Marketing Services
8.1. The Nōwn Services may include services whereby you or developers or third-parties hired by you use the Nōwn Services to market your products and services. This Section contains terms and conditions applicable to your use of the Nōwn Services for that purpose, whether you are a Merchant or other User, including a developer or operator of a website or application who wishes to use the Nōwn Services for the purpose of including Nōwn Content in your “Nōwn Marketing Initiative”.
8.2. If you are a Merchant and you procure a third-party to develop a Nōwn Marketing Initiative for you, this Section applies to your and their use of the Nōwn Services, and you are responsible for their compliance with this Section to the same extent as though you were developing the Nōwn Marketing Initiative yourself.
8.3. If you are a services developer and not otherwise a User, your use of the Nōwn Services constitutes your agreement to the Terms. We may change the Terms without notice to you by posting new Terms on the Site. It is your responsibility to review the Site for changes to the Terms. If you use Nōwn Services after new Terms are posted, your use of Nōwn Services constitutes your agreement to the new Terms. If you do not wish to be bound by the new Terms, cease your use of Nōwn Services.
8.4. If you are a services developer supporting a Nōwn Marketing Initiative and not otherwise a Merchant or other User of Nōwn Services, the license set forth in this Section applies to your use of the Nōwn Services, and the license set forth in Section 6 does not apply to your use of the Nōwn Services. If you are also a Merchant or other User, the license set forth in Section 7 applies to your use of Nōwn Content other than the Nōwn Services, and this applies to your use of the Nōwn Services
9.1. The Nōwn Services are intended to operate together with dedicated hardware (the “Hardware”). To minimize the risk of security breaches and technology malfunctions, you agree to use dedicated hardware for the Nōwn Services. For example, you will ensure that your employees do not install apps on the iPads; do not use the iPads to surf the web, and such). If you do not use dedicated hardware, we reserve the right to not support your Nōwn Services as the other applications may cause conflicts or performance issues with Nōwn Services.
9.2. You will be responsible for purchasing and maintaining the Hardware to meet the specifications necessary to be compatible with the Nōwn Services. Recommended Hardware and vendors will be posted on www.nownpos.com and
we reserve the right to change such specifications and providers from time to time without notice.
9.3. Each Hardware shall be fixed next to or near your checkout and adjacent to your credit card terminal with the Nōwn POS screen (on the iPad) at all times facing away from customers. You are responsible to protect your Customer’s Personal Information (see Section 2), including your Customer’s picture that will be visible on the Nōwn POS from time to time. In no way shall the Nōwn POS or a display of its screen in any form is public facing at any time. Such picture and customer information must not be visible to any guests, customers or any other person or persons that may be in your store visiting at any time for any reason whatsoever. For greater clarity, the strict use and viewing of such Customer’s Personal Information, visible on the Nōwn POS, is for only authorized users bound by these Terms who are using the Nōwn Services as contemplated in these Terms.
9.4. We shall have the right, but not the obligation, to access your hardware during normal business hours to audit, update, maintain or support the Nōwn Services at our discretion.
10. Nōwn Mobile Payments & Mobile Pre-Order
10.1. By using the Nōwn Services, you acknowledge that the Nōwn App will be utilized to collect cardholder data and facilitate the process of mobile payments through your payment processor for purchases made of products or services provided by you, the Merchant (the “Nōwn Mobile Payment Service”).
10.2. YOU AGREE NOT TO COLLECT, USE OR STORE ANY CARDHOLDER DATA FROM THE NŌWN SERVICES IN ANY FORM ON ANY STORAGE MEDIUM AT ANY TIME WHETHER OR NOT SUCH STORAGE IS PERMANENT OR TRANSIENT.
10.3. Your use of the Nōwn Services includes the ability to enter into agreements and/or make transactions electronically. You will be legally bound by any agreements made by electronic submission including agreements to make transactions. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
10.4. You shall be the Merchant on record for any transactions processed at your location using the Nōwn Mobile Payment Service and we shall facilitate such transactions through the Nōwn Services and your payment processor to your bank account. You shall be directly responsible for all fees, charges, or expenses incurred using your payment processor.
10.5. You shall be solely and directly responsible for your entire Customers’ refunds or chargebacks from the Nōwn Mobile Payment Service, and all fees, charges, expenses incurred thereof. At your request, we shall support your investigation into such Customer’s refunds or chargebacks from the Nown Mobile Payment Service as reasonably possible.
10.6. You shall be solely responsible for the collection and processing of any federal, provincial, state or local sales, value-added, transaction or similar taxes, as applicable, from your Customers, as well as for all other taxes, withholding taxes, duties, premiums, levies, imposts, contributions, assessments or other charges that may be payable to any federal, provincial, state, local or other taxing authority having jurisdiction in respect thereof.
10.7. You shall be solely and directly responsible for the advertisement and delivery of your goods and/or services available for mobile pre-order on the Nōwn Services to your Customers; You shall take best efforts to ensure the information on the Nōwn App is accurate, up to date and the goods and/or services available for purchase; and to remove immediately any goods and/or services that are inconsistent, false, unavailable on the Nōwn App through the Nōwn Services; You will notify us immediately if you are unable to make such changes or updates on the Nōwn Services or are unable to take the steps necessary to make such changes or updates.
10.8. You shall be solely responsible to the delivery of such goods and/or services advertised by you on the Nōwn App through the Nōwn Services, and in cases where there are discrepancies between your advertisement of goods and/or services on the Nōwn App and your Customer, you will take best efforts to rectify the discrepancy with such Customer immediately to the benefit and preservation of your brand and the Nōwn brand.
11. Your Loyalty program on the Nōwn App
11.1. By using the Nōwn Services, you acknowledge that the Nōwn App will be utilized by your Customers to collect loyalty points for transactions they complete for goods and/or services at your establishment; and such loyalty points maybe redeemed by your Customers as dollar value for goods and/or services they may purchase in the future at your establishment (collectively the “Loyalty Points”).
11.2. You agree the Loyalty Points have no cash value and you agree you (or your staff) shall not allow the Loyalty Points to be redeemed for cash, monetary compensation or for any goods and/or
services not for public consumption at your
establishment (such as any illegal, illicit or private goods and/or services).
11.3. You agree the Loyalty Points is not transferable and you agree you shall not allow the transfer of the Loyalty Points to any persons (including between Customers or between Customers and your staff) or to any other loyalty program that currently exists or may or in the future participate at your establishment.
11.4. You agree to be solely and fully liable for the Loyalty Points to your Customers and notwithstanding Section 17, you shall indemnify, defend and hold harmless Lucova and its Released Parties (defined below) from any claim or allegation arising from your use of the Loyalty Points.
11.5. Except where prohibited by applicable law, we reserve the right to amend, change, update, cancel or terminate the Loyalty Points at anytime for any reason whatsoever including any adjustments to the dollar value prescribed for the collection of loyalty points or the dollar value prescribed for the redemption of loyalty points.
12. Other Restrictions on Use of the Nōwn Services
12.1. Any party’s use of the Nōwn Services is also subject to the following restrictions. You (alone or by assisting or enabling any other party) may not:
i. Interfere or attempt to interfere in any manner with the proper workings of the Nōwn Services, or create or distribute any Nōwn Marketing Initiative that adversely affects the functionality or performance of the Nōwn Services or adversely impacts the behavior of other applications using the Nōwn Services;
ii. Misrepresent your identity or intentions when communicating with us in relation to the Nōwn Services, use the developer credentials licensed to a different individual or entity, allow your credentials to be used by others, or mask your usage of the Nōwn Services;
iii. Use the Nōwn Services in association with, or as a component of, any website that in the sole discretion of Lucova is determined to be obscene or otherwise commercially inappropriate;
iv. Use the Nōwn Services for any application that constitutes, promotes or is used in connection with spam, spyware, adware, other malicious programs or code;
v. Use the Nōwn Services in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, taxation or governmental reporting obligations or other regulatory obligations;
vi. Replicate, in whole or in part, the “look and feel” of the Nōwn Services or portion of them;
vii. Use a combination of visual, design, or functional elements that could reasonably be expected to cause confusion between the Nōwn Services and your Nōwn Marketing Initiative among users;
viii. Disparage or otherwise negatively represent Nōwn Services or do anything that could result in damage or dilution to the goodwill of Lucova and its Nōwn brand;
ix. Use the Nōwn Services for any application or service that attempts to replace or replicate the essential user experience or functionality of any or all the Nōwn Services;
x. Reverse engineer, decompile or otherwise attempt to extract the source code of Nōwn Services or any part thereof;
xi. Circumvent or render ineffective any IP address-based functionality or restriction imposed by the Nōwn Services;
xii. Circumvent technological measures to prevent direct database access, nor manufacture tools or products to that effect;
xiii. Build conversion functionality that converts User Content from the Nōwn Service to a competing or alternative product or service.
the Nōwn Services and ensure that it remains within reasonable operational limits for both your own capacity and for ours, when applicable.
12.3. We have no responsibility to any person for any use or misuse of any content obtained through the Nōwn Services. If you are a Merchant, you should consider carefully whether you wish to give a Nōwn Marketing Initiative services developer access to your content through the Nōwn Services. If you wish to revoke access to your content through the Nōwn Services, you should change your Nōwn Services password or revoke authorization of the Nōwn Marketing Initiative to your content. Please contact us at email@example.com if you want assistance doing this.
13. Use of Feedback Chat, Social Media Areas and the Nōwn Services
13.1. The Nōwn Services may include a feedback chat, discussion forums, location-based services, menu, pricing, and establishment information, bulletin boards, review services or other forums in which you or third parties may post reviews or other content, messages, materials or other items on Nōwn Services (“Social Media Areas”).
13.2. If we provide such Social Media Areas, you are solely responsible for your use of such Social Media Areas and use them at your own risk. User Content submitted to any public area of the Nōwn Services will be considered non-confidential. You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Nōwn Services any of the following:
i. Any message, data, information, text, music, sound, photos, graphics, code or other material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
ii. Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
iii. Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
iv. Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
v. Unsolicited promotions, political campaigning, advertising or solicitations;
vi. Private information of any third party, including, without limitation, addresses, phone numbers, email addresses and credit card numbers, unless that third party has expressly consented to such use;
vii. Viruses, corrupted data or other harmful, disruptive or destructive files;
viii. Content that is inaccurate, misleading, or unrelated to the topic of the Interactive Area(s) in which such Content is posted; or
ix. Content that, in the sole judgment of Lucova, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or the Nōwn Services, or which may expose Lucova or its affiliates or its users to any harm or liability of any type.
Nōwn Services, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
13.3. Lucova has a “zero-tolerance” policy towards unauthorized marketing and spam: you may not use the Social Media Areas or Nōwn Services generally to send commercial or other messages to any third-party if those messages are not solicited, authorized or welcomed by the third- party, and in your use of Nōwn Services you must comply with all applicable laws, including laws that apply in any jurisdiction to spam and marketing practices, and with any applicable marketing association guidelines on ethical marketing practices.
13.4. Any use of the Social Media Areas or other portions of the Nōwn Services in violation of the foregoing violates the Terms and may result in, among other things, termination or suspension of your rights to use the Social Media Areas and/or Nōwn Services.
14. Third-Party Material
14.1. Nōwn Services may contain links or references to third-party Web sites (“Third-Party Sites”) and third-party content (“Third-Party Content”) as a service to those interested in this information, including third party suppliers, payment processors and other payment intermediaries that you may use in connection with your use of Nōwn Services. Your use of such links to Third-Party Sites and any Third-Party Content or service provided there is at your own risk.
14.2. We make no claim or representation regarding Third-Party Content or Third-Party Sites, and we provide them (or links to them) only as a convenience. Inclusion in Nōwn Services of a link to a Third-Party Site or Third-Party Content does not imply Lucova’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. Lucova accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content, Third-Party Sites, or Web
sites linking to Nōwn Services. When you leave
14.3. The provider of any third party service is solely responsible for that third party service, the content therein, any warranties to the extent that such warranties have not been disclaimed, any training, support or maintenance for the third party services, and any claims that you or any other party may have relating to that third party services or your use of that third party service. You acknowledge that you are purchasing the license to each third party service from the provider of that third party service; Lucova is not acting as agent for the provider in providing each such third party services to you; Lucova is not a party to the license between you and the provider with respect to that third party services; and Lucova is not responsible for that third party services, the content therein, or any warranties or claims that you or any other party may have relating to that third party services or your use of that third party services.
14.4. You acknowledge and agree that Lucova and its affiliates are third party beneficiaries of the End User License Agreement for each third party services, and that, upon your acceptance of the terms and conditions of the license to any such third party services, Lucova will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof.
15. Advertisements and Promotions
15.1. We may run advertisements and promotions from third parties on Nōwn Services. Your business dealings or correspondence with, or participation in promotions of, such advertisers other than Lucova, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on Nōwn Services.
16. Warranty Disclaimer
16.1. We put a great deal of effort into ensuring that Nōwn Services operate on a reliable basis and where applicable provide a secure environment for your data. We use what we believe to be “best-of-class” infrastructure and hosting services and security technologies and services that we believe provide you with a secure and safe environment. However, no system is perfectly secure or reliable, the Internet, hardware, power sources, and local servers and associated technology are inherently unreliable at times and can be an insecure medium, and the reliability of hosting services, Internet intermediaries, your Internet service provider, servers, databases, access to or use of financial or business records, and other service providers cannot be assured or assumed.
16.2. The Nōwn Services and any third party services are provided to you on an “as is” basis without any warranties from Lucova of any kind, either express or implied. Lucova expressly disclaims all other warranties, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Lucova does not represent or warrant that the Nōwn Services are accurate, complete, reliable, current or error-free. The Nōwn Services and access to data may be interrupted or unavailable at any time and you accept all risk associated with such unavailability or interruption. Y ou should establish other systems to ensure business continuity and to ensure the accuracy or reliability or any business, financial or accounting data generated by the use of Nōwn Services or otherwise stored or accessed through Nōwn Services.
16.3. While we attempt to make your access to and use of Nōwn Services safe, we do not represent or warrant that the Content, the third party services or Nōwn Services are free of viruses or other harmful components or will be available without interruption or error.
17. Limitation of Liability; Indemnity
17.1. You waive and shall not assert any claims or allegations of any nature whatsoever against Lucova, its affiliates or subsidiaries, their sponsors, suppliers, contractors, advertisers, vendors or other partners, licensors, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Released Parties”) arising out of or in any way relating to your use of Nōwn Services or any third party services, including, without limitation, any claims or allegations relating to infringement of proprietary rights, or allegations that any Released Party has or should indemnify, defend or hold harmless you or any third party from any claim or allegation arising from your use or other exploitation of any third party services or Nōwn Services.
17.2. You use Nōwn Services completely at your own risk. You agree that this is fair and reasonable.
17.3. Without limiting the foregoing, neither Lucova nor any other Released Party shall be liable for any direct, special, indirect or consequential damages, or any other damages of any kind, including but not limited to loss of use, loss of profits or loss of access to or use of data or loss of goodwill, whether in an action in contract, tort (including but not limited to negligence) or otherwise, arising out of or in any way connected with the use of or inability to use any or all Nōwn Services or any third party services, including without limitation any damages caused by or resulting from your reliance on Nōwn Services or any third party services or other information obtained from Lucova or any other Released Party or accessible via Nōwn Services or any third party service, or that result from mistakes, errors, omissions, interruptions, deletion of files or data or email, defects, viruses, delays in operation or transmission or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to Lucova or any other Released Party’s records, programs or services.
17.4. In no event shall the aggregate liability of Lucova, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of Nōwn Services or any third party services exceed any compensation paid by you for access to or use of Nōwn Services for the three months prior to the date of any claim.
17.5. You shall defend, indemnify and hold harmless Lucova and the other Released Parties from any loss, damages, liabilities, costs, expenses, claims and proceedings arising out of your use of Nōwn Services, and if you are a Merchant, from your Customers’ use of Nōwn Services or any third party services and from the use Nōwn Services or any third party services by any person to whom you give access to your account (including as staff), including any claims made by any person that any of your, and if you are a Merchant, your Customers’, User Content infringes the rights, including the intellectual property rights, of any third party. Some jurisdictions limit the scope of limitations of liability in which event Lucova claims the full scope of limitation of liability as may be allowed in any applicable jurisdiction.
17.6. Lucova shall nor be liable for any delay in performing any of its obligations under this Terms in the event of strikes, lock-outs, calamities, acts of God, unavailability of supplies or other events over which Lucova has no reasonable control for so long as such events continue, and for a reasonable period of time thereafter.
18.1. Notices that we give you (other than notice of amendment of the Terms, which is discussed in the introduction of the Terms) may be provided in any number of ways, depending on the circumstances. For example, we may email you or telephone you at the contact information you provide in your Registration Data. Or we may post a notice to Merchants and Customers in the dashboard area of your account on the Site, or post the notice elsewhere on the Site. When we post notices on the Site, we post them in the area of the Site suitable to the notice. It is your responsibility to periodically review the Site for notices. You agree to keep all Registration Data current and up to date which can be done by contacting firstname.lastname@example.org
19. Applicable Law and Venue
19.1. The Nōwn Services are controlled by Lucova and operated by it from its offices in Toronto, Ontario Canada. You and Lucova both benefit from establishing a predictable legal environment in regard to Nōwn Services. Therefore, you and Lucova explicitly agree that all disputes, claims or other matters arising from or relating to your use of Nōwn Services or any third party services shall be exclusively governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein and the courts sitting at Toronto, Ontario. The parties hereto waive any right to trial by jury in respect of any dispute arising from or related to this agreement.
19.2. Except where prohibited by applicable law, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) involving Lucova and arising out of or relating to (a) the Terms; (b) the Nōwn Services or any associated third party services; (c) oral or written statements, advertisements or promotions
relating to the Nōwn Services or any associated third party services; or (d) the relationships that result from the Nōwn Services or any associated third party services (collectively, a “Claim”), will be referred to and determined by individual arbitration by a single arbitrator (to the exclusion of the courts) sitting at Toronto, Canada in accordance with the Arbitrations Act of Ontario. Arbitration can be initiated by either party delivering to the other party a written Notice of Arbitration invoking this provision. The arbitrator’s authority is limited to claims between you and us alone. Claims may not be joined or consolidated unless you and we consent in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. The arbitrator’s decision will be final and binding. Each party will bear its own expenses under such arbitration, subject to the authority of the arbitrator to make an award of legal costs in accordance with the arbitrator’s authority.
19.3. Except where prohibited by applicable law, you waive any right you may have to commence or participate in any class action against Lucova related to any Claim and, where applicable, you also agree to opt out of any class proceedings against Lucova. Without limiting the foregoing, you and we will not have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. If you have a Claim, you should give written notice to arbitrate at the e-mail address specified below or by registered mail to Lucova’s head office. If we have a Claim, we will give you notice to arbitrate at your address provided in your Registration Data. Arbitration will be conducted by one arbitrator pursuant to the commercial arbitration laws and rules under Arbitrations Act of Ontario in effect on the date of the notice in the Province of Ontario.
19.4. To the extent arbitration as described in the immediately preceding paragraph is prohibited by applicable law, you agree that all Claims shall be heard and resolved in a court of competent subject matter jurisdiction located in Toronto, Ontario. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts and submit to their exclusive jurisdiction, and covenant not to assert any objection to proceeding in such courts. Notwithstanding the foregoing, Lucova shall be entitled, at its election, to apply to a court of competent jurisdiction for interim or permanent injunctive relief, a mandatory order, restraining order, or other like relief to restrain an actual or threatened breach of this Agreement and Lucova’s rights under it by any party and specifically but not limited to protection of the intellectual property, information technology, brand, trade-marks, and other proprietary material of Lucova or its suppliers or licensors.
19.5. If you choose to access the Nōwn Services from locations other than Ontario, you will be responsible for compliance with all local laws of such other jurisdiction and you agree to indemnify Lucova and the other Released Parties for your failure to comply with any such laws.
20. Termination/Modification of License Offerings
20.1. Notwithstanding any provision of the Terms, Lucova reserves the right, without notice and in its sole discretion, without any notice or liability to you, to (a) terminate your license to use Nōwn Services, or any portion thereof (including any use of any third party services) and the rights of any third party to which you have granted access to your User Content through the Nōwn Services; (b) block or prevent your future access to and use of all or any portion of the Nōwn Services or Content (including any use of any third party services) and the rights of any third party to which you have granted access to your User Content through the Nōwn Services; (c) change, suspend or discontinue any aspect of the Nōwn Services or Content; and (d) impose limits on the Nōwn Services or Content. Your sole remedy in such circumstances shall be limited to and not exceed the return of the pro rata amount of any pre-paid fees applicable to the balance of the term of any then current subscription period.
21. Termination of Agreement
21.1. The Nōwn Services will renew automatically for an additional fixed term of same duration. To avoid automatic renewal you must notify Lucova in writing at least sixty (60) days prior to the termination date. Standard price increases may apply on renewal. Upon renewal you authorize Lucova to process and collect payment in advance for the renewal term without further notice to you. Unless otherwise provided: (a) the Nōwn Services and access to Content are purchased as subscriptions, (b) subscriptions may be added at the same pricing as the underlying subscription pricing, starting with a new term and (c) any added subscriptions will terminate at the end of the new term.
21.2. You and Lucova may terminate your use of the Nōwn Services including your agreement to the Terms at any time. If you terminate your use of the Nōwn Services you must pay the fees applicable for the balance of the then current term (if your term period is monthly, we will prorate your account to the nearest month-end after termination) including for any third party services you may be using. When your Nōwn account is terminated, your User Content will, shortly thereafter, not appear on the Nōwn Services, except for User Content submitted to public areas of the Site such as the blog, forum, or product reviews, which may remain on the Site after termination. We may also retain an archival copy of your User Content after termination, and you hereby grant us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for our internal business purposes.
21.3. If the Terms expire or terminate for any reason, Sections 5, 10-19 and any representation or warranty you make in the Terms, and any other term of the Terms that by its nature is ongoing, shall survive indefinitely.
22.1. If any provision of the Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions.
22.2. Lucova may assign any or all of its rights hereunder to any party without your consent. You are not permitted to assign any of your rights or obligations hereunder without the prior written consent of Lucova, and any such attempted assignment will be void and unenforceable. The Terms constitute the entire agreement between you and Lucova regarding your use of the Nōwn Services or any associated third party services, and supersede all prior or contemporaneous communications whether electronic, oral or written between you and Lucova regarding your use of them. The parties confirm that it is their wish that the Terms, as well as any other documents relating to this Terms, including notices, have been and shall be drawn up in the English language only. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais.
23.1. All references to currency herein are deemed to mean lawful money of the jurisdiction you, the Merchant is operating in and using the Nōwn Services. If your business operates in Canada, references to currency shall mean lawful money of Canada (CAD), and if your business operates in the United States, then references to currency shall mean lawful money of the United States of America (USD).
24. Questions and Comments 24.1. If you have any questions regarding the Terms or your use of the Nōwn Services, please
contact us here: email@example.com.