Terms of Use – Retail

The following Terms of Use are for Customers of Ethor Retail Corp. To view the Terms of Use for eThor’s payment services provided by eThor Media Ltd. and eThor (US), Corp. please visit https://ethor.com/terms-of-use/

These Ethor Retail Corp. (“eThor”) Terms of Use (“Agreement”) govern Customer’s acquisition and use of “eThor’s software application for payment, reconciliation and other data services used by merchants (the “Service”). Capitalized terms have the definitions set forth herein

By accepting this Agreement, either by (1) clicking a box indicating acceptance; or (2) executing an Order Form that references this Agreement, Customer agrees to and accepts the terms of this Agreement.

This Agreement was last updated on November 10, 2023. It is effective between eThor and Customer as of the date of click-accept by Customer or the date of execution of an Order Form by both parties, as applicable (the “Effective Date”). eThor will notify Customer of any material changes to this Agreement. Any such revisions to this Agreement shall become effective thirty (30) days following the date of the notice and Customer’s acceptance of the revised Agreement or decision to continue using the Service thereafter (as applicable) shall constitute acceptance of the revised Agreement.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Definitions.

For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;

“Anonymous Service Data” means any and all data and information that is not Personal Information (including but not limited to data such as Customer’s Data which has been de-identified, aggregated and made anonymous by eThor) created or collected through Customer’s use and operation of the Service; provided, that in each case such data cannot be used to identify Customer or any of its Users or Affiliates;

“Contributing Customer” means an eThor customer who has subscribed to use the Service and has agreed on the Order Form that eThor can create Anonymous Service Data from Customer’s Data for inclusion in the Service Data Pool;

“Customer” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates);

“Customer’s Content” means any and all content, postings, information, data and/or other materials that Customer and/or Customer’s Users submit to the community forums or other discussion areas provided by the Service;

“Customer’s Data” means all electronic data or information submitted by Customer and/or Customer’s Users to the Service including, without limitation, Personal Information such as: (i)

Transaction data generated from Customer’s end user’s interaction with Customer’s POS system; (ii) transaction data generated from a third-party ecommerce platform; (iii) data on Customer’s end user’s receipt; (iv) Customer’s End user’s loyalty data; (v) Name on Customer’s end user’s credit card; and (vi) Name, expiry date, last 4 digits of Customer’s end user’s credit card.

“Documentation” means the user guide and/or any other documentation outlining proper usage of the Service;

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;

“Online Order” means an order placed online through a third party that is then gathered and fulfilled at the store;

“On-Site” means any instance where a representative from eThor must physically travel to Customer merchant location;

“Order Form” means a written document in the form provided by eThor which is executed by the parties and specifies the Subscription Term, Subscription Fees, and any other additional commercial terms agreed by the parties;

“Personal Information” means any information that eThor collects, receives or obtains, from or on behalf of Customer or any of its Users or Affiliates about an identifiable individual;

“POS Partner” means a third party that eThor has partnered with to provide software and/or support for the POS portion of the Service;

“Privacy Laws” means the Personal Information Protection and Electronic Documents Act (Canada) and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data;

“Service Compatible Application(s)” means an application that has been developed using the Service APIs by Customer or by a third party authorized by Customer to develop such an application for Customer;

“Service Data Pool” means a database which aggregates Anonymous Service Data of Contributing Customers solely in an aggregated and anonymized format that cannot be used or reverse engineered to identify any individual, Customer or Customer’s Users or Affiliates;

“Subscription Fees” means the software services fees (as specified in the Order Form) payable by Customer to eThor for the right to receive access to the Service;

“Subscription Term” means an initial subscription term for the Service and any renewal periods for the Services as specified in the Order Form; and “User” means an individual or entity who is authorized by Customer to use the Service on Customer’s behalf, whether or not the individual has been supplied a user account and password for the Service by Customer (or by eThor at Customer’s request).

“User” means an individual or entity who is authorized by Customer to use the Service on Customer’s behalf, whether or not the individual has been supplied a user account and password for the Service by Customer (or by eThor at Customer’s request).

2. Grant of eThor Software License.

2.1 Commercial License Grant. Subject to this Agreement, including payment of all applicable Subscription Fees, eThor grants Customer a limited, personal, non-transferable, non-sub-licensable, internal license to use the Service during the Subscription Term.  The right to use the Service is licensed, not sold.

2.2 User Accounts. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.

2.3 Customer’s Content. The Service may include community forums or other discussion areas where Customer may post or otherwise make Customer’s Content available to other customers of eThor who are using the Service.  Customer acknowledges and agrees that Customer’s Content when submitted to the community forums or other discussion areas of the Service will not be confidential.  Customer is solely responsible for ensuring Customer has or has obtained all rights necessary to share Customer’s Content via the Service.  Customer shall not use the community forums or other discussion areas provided by the Service to send any messages that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially or ethnically objectionable, that encourage criminal behavior, infringe intellectual property or other property or personal rights (including privacy and publicity rights), give rise to civil liability, violate any law, or are otherwise objectionable.  eThor has the right (but will have no obligation) to remove or refuse to distribute any of Customer’s Content and to terminate Customer’s User accounts that have violated any of the provisions of this Agreement relating to Customer’s Content. eThor shall also have the right to access, read, preserve and disclose any information that eThor reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations of this Agreement, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Service users.

2.4 Third-Party Services. Customer acknowledges and agrees that the Service may integrate with third-party software, websites, data, products or services not owned or operated by eThor (“Third-Party Services”). Customer acknowledges that use and enabling of any such Third-Party Services will be subject to any terms which may govern and/or apply to such Third-Party Services. Third-Party Services may be used to analyze all data transmitted through or created through use of the Service to generate insights, recommendations and other outputs which may be collated into the Service Data or Service Data Pool (collectively, “Outputs”). Customer is solely responsible for all decisions made, advice given, actions taken, and failures to take action based on Customer’s use of or reliance on Outputs.

2.5 Customer’s Affiliates. Customer’s Affiliates may use the Service subject to this Agreement. Customer shall cause each of Customer’s Affiliates to comply with this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by any such Affiliate shall be deemed an act or omission by Customer. In addition, each party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.

3. Use of the Service.

3.1 eThor Responsibilities. eThor shall use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) Planned Downtime (of which eThor shall give Customer at least twenty-four (24) hours’ notice); or (b) any unavailability caused by circumstances beyond eThor’s reasonable control, including without limitation, acts of God, wars, acts of terrorism, riots, embargoes, acts of government authorities, fires, floods, accidents, or strikes, acts of government authorities, floods, fires, earthquakes, civil unrest, strikes or other labor problems (other than those involving eThor employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within eThor’s possession or reasonable control, and denial of service attacks. eThor shall provide Customer with first line support twenty-four (24) hours a day, seven (7) days a week. Customer will be able to contact eThor via a toll-free number and/or email. Customer will direct their corporate stores and franchisees to first contact Customer’s help desk for any support. Customer will provide a primary point of contact who will relay any issues to eThor’s support team. eThor will offer Customer second line support within regular business hours, Monday to Friday from 9am-5pm MST and provide Customer with a project manager to manage the successful deployment of the Service for Customer. Project manager will be available during regular business hours, Monday to Friday from 9am-5pm MST.

3.2 Customer’s Responsibilities.  Customer is responsible for all activities that occur in User accounts and for Users’ compliance with these Terms. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of Customer’s Data and all of Customer’s Content; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify eThor promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, state, federal and foreign laws in using the Service, including Privacy Laws; (iv) ensure any Service Compatible Applications developed or purchased by Customer and Customer’s use thereof comply with this Agreement; (v) maintain and support Customer’s point of sale (“POS”) environment and Customer’s WiFi or network setup and functionality; (vi) appoint a single point of contact who is responsible for directing and managing the relationship with eThor; (vii) provide eThor or the POS Partner with access to Customer’s POS environment when necessary for the purpose of providing support; (viii) in cases where Customer chooses to install eThor’s software itself, Customer is required to fully and properly complete all the steps outlined in the setup documentation provided by eThor; (ix) managing Customer’s own passwords including but not limited to any and all passwords within eThor’s service as well as passwords for Customer’s POS system and WiFi.

3.3 Use Guidelines.  Customer shall not knowingly: (i) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, including Privacy Laws; (ii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iii) use the Service to send or store Malicious Code; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

3.4 Service Changes.  eThor may change the Service at any time upon reasonable notice to Customer by sending Customer notice via an email to the email address Customer provides on Service registration, or otherwise in writing; by electronic communication; or provided, that such notices shall not undermine or frustrate the purpose of any term of the Agreement.  If Customer does not accept the change, Customer’s sole recourse is to continue using the Service as it existed prior to any changes that were made to the Service.

4. Fees and Payment.

4.1 Fees. In consideration for the receipt of the Services Package, Customer shall pay the Subscription Fees listed in the Order Form. Except as expressly provided herein, all Subscription Fees are non-refundable. All Subscription Fees are exclusive of any taxes, duties or levies assessed by applicable governmental authorities (“Taxes”). All Taxes (exclusive of any Taxes based upon eThor’s net income) shall be assumed by and paid for by Customer.

4.2 Invoicing and Payment. Customer agrees to pay eThor the Subscription Fees listed in the Order Form on a monthly basis.  Customer agrees to let eThor pull Subscription Fees from Customer’s bank account via ACH a minimum of 7 days after eThor has issued the monthly invoice to Customer. Unless otherwise stated in the Order Form or on an invoice sent to Customer by eThor, all undisputed invoiced amounts for the Service are due upon net 7 terms for such amounts. If Customer’s bank account is not able to be charged for Subscription Fees for any reason, Customer must provide a valid payment method within ten (10) days of a missed payment to continue accessing the Service without interruption.

4.3 Subscription Term Renewals. Upon the expiry of Customer’s initial Subscription Term, on the day the initial Subscription Term expires, Customer shall be automatically renewed for an additional term of the same length as the initial Subscription Term. Customer will be charged in full at the then-current price for the subscription for each such renewed Subscription Term.

4.4 Overdue Payments. Any incurred Subscription Fees not received from Customer by their due date may accrue (except with respect to fees then under reasonable and good faith dispute), at eThor’s discretion, 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 such payment was due until the date paid.

4.5 Fee Changes. eThor may change the Subscription Fees eThor charges for the Service at any time in eThor’s discretion.  Changes to the Subscription Fees will be communicated in writing to Customer with at least thirty (30) days’ prior notice, provided, however, any fee changes will not change Customer’s Subscription Fees applicable to Customer’s current Subscription Term, however, such fee changes will be applicable to Customer’s next Subscription Term renewal.  If Customer does not wish to pay the changed Subscription Fees, then Customer’s recourse is to not renew Customer’s subscription for the Service, and/or to terminate the Service, which termination Customer may effect immediately upon notice to eThor at any time within 90 days after notice of the fee change. Customer’s renewal of Customer’s subscription for the Service (including by not providing notice of non-renewal in accordance with the time periods specified in Section 11), or continued access to and use of the Service for more than 90 days after the change has come into effect, constitutes Customer’s acceptance of the fee change.

5. Proprietary Rights.

5.1 Reservation of Rights. Subject to the limited rights expressly granted pursuant to this Agreement, eThor reserves all right, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.

5.2 License Restrictions. Customer shall use the Service solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Service available to any third party except to the extent expressly agreed by eThor in writing, and/or to its Users or Affiliates as contemplated by this Agreement. Customer shall not, directly or indirectly, and shall not permit any third party to: (i) modify, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement of this restriction is prohibited by applicable law notwithstanding a contractual provision to the contrary; (ii) circumvent any user limits or other use restrictions that are built into the Service; (iii) knowingly use the Service for an illegal purpose, criminal offence, intellectual property infringement, harassment (including annoying or offensive transmissions) or in a manner that would cause interference with network operations; (iv) knowingly interfere with the Service or any of the hardware, software or other infrastructure used to provide the Service; or (v) access the Service in order to build a competitive product or service, or to copy any ideas, features or graphics of the Service. Any breach of this section 5.2 will constitute a material breach for which eThor may immediately terminate this Agreement and seek damages amongst other remedies.

5.3 Lawful Purposes. Customer will use commercially reasonable efforts to comply with all laws and regulations that may apply to Customer’s use of the Service in all material respects. Customer may not: (i) use the Service to manage any illegal operations; (ii) use any type of spider, crawler, virus, worm, Trojan-horse, time bomb or any other codes or instructions that are designed to damage or disable the technology underlying the Service; (iii) send any unsolicited communication not permitted by applicable law; or (iv) endanger any part of any system or Internet connection of eThor or any third party.

5.4 Customer’s Data, Customer’s Content and Anonymous Service Data. As between eThor and Customer, Customer and its licensors exclusively own all rights, title and interest in and to all of Customer’s Data and Customer’s Content. Customer’s Data is deemed to be Customer’s Confidential Information. Customer is solely responsible for obtaining necessary consents and providing necessary notices to ensure Customer’s Data can be shared with and processed by eThor as contemplated in this Agreement. Unless otherwise agreed to in writing by both Parties, eThor shall only access Customer’s User accounts, including Customer’s Data, to respond to service or technical problems or as necessary for the operation of the Service or billing. During the Subscription Term (and for thirty (30) days thereafter), Customer hereby grants eThor a non-exclusive, royalty-free and irrevocable license to use, copy and otherwise exploit Customer’s Data and Customer’s Content as reasonably required to provide the Service. The forgoing license shall include the right for eThor to use Customer’s Data and Customer’s Content for the purpose of creating Anonymous Service Data, and the right to generate anonymous statistics to be shared with its other customers in connection with the Service. eThor shall own all right, title and interest in and to the Anonymous Service Data, including all intellectual property rights in the Anonymous Service Data, and Customer hereby assigns, transfers and conveys to eThor any ownership interest Customer may have in any Anonymous Service Data.

5.5 Anonymous Service Data License. During the Subscription Term, eThor hereby grants Customer a non-exclusive, non-sublicensable, and revocable license to access, use, copy and otherwise exploit Anonymous Service Data for Customer’s internal business purposes. Customer acknowledges that Outputs may be more accurate and/or applicable to Customer’s needs if Customer provides prior written consent to become a Contributing Customer. For the time during the Subscription Term that Customer is a Contributing Customer, eThor grants Customer a non-exclusive, non-sublicensable, limited license to access and use the data in the Service Data Pool for its internal business purposes. Access fees may apply and will be indicated on the Order Form if applicable.

5.6 Service Data Pool. By becoming a Contributing Customer, Customer acknowledges and agrees that eThor shall be expressly permitted to grant all Contributing Customers access to use the Service Data Pool, including Anonymous Service Data derived from Customer Data and usage of the Service. Unless Customer is or becomes a Contributing Customer during the Subscription Term or as expressly provided in this Agreement, eThor shall not make Anonymous Service Data available to third parties other than to its other Contributing Customers.

5.7 Suggestions. Customer hereby grants eThor and its Affiliates a paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or Customer’s Users relating to the Service.

6. Confidentiality.

6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in Order Forms hereunder), the Customer’s Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.

6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

7. Confidentiality.

7.1 Warranties. Each party warrants that it has the legal power to enter into this Agreement. eThor warrants that (i) it will provide the Service in good faith, in a commercially reasonable manner, and in manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service shall perform materially in accordance with the Documentation; and (iii) the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from Customer or a User).

7.2 POS Warranty. Customer acknowledges and agrees that the POS Partner is responsible for building, installing, maintaining and supporting the software which interacts with Customer’s POS (“POS Software”). eThor shall have no obligation to Customer in respect of the POS Software or any POS Software warranty offered by the POS Partner.

7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR PROVIDES ANY WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8. Confidentiality.

8.1 Indemnification by eThor. Subject to the terms and conditions of this Agreement, eThor shall, at its own expense, defend Customer, its direct and indirect owners and Affiliates, and each of their respective officers, directors, employees, and agents (together, the “Customer Indemnitees”) in any action, suit or proceeding by a third party alleging that the Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party and/or violates any applicable law (an “IP Claim”), and shall indemnify and hold Customer Indemnitees harmless from and against any settlement amounts agreed in writing by eThor and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against the Customer Indemnitees by a court or tribunal of competent jurisdiction in such IP Claim. Customer agrees to, (i) notify eThor promptly in writing upon becoming aware of all pending IP Claims; (ii) give eThor sole control of the defense and settlement of such IP Claims; (iii) cooperate with eThor in the defense or settlement of such IP Claims; and (iv) not settle any IP Claims without eThor’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.

8.2 Mitigation. If (a) eThor becomes aware of an actual or potential IP Claim, or (b) Customer provides eThor with notice of an actual or potential IP Claim, eThor may (or in the case of an injunction against Customer, shall), at eThor’s sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to eThor.

8.3 Exclusions. The obligations in Sections 9.1 and 9.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by eThor with other products, software or services not provided by or authorized by eThor; (2) any IP Claim related to any of Customer’s Data or the POS Software, or (3) any IP Claim related to Third-Party Services, any use of the Service outside the scope of the rights granted in this Agreement or use of the Service with hardware and/or software not specifically approved by Documentation or in this Agreement.

8.4 Indemnification by Customer. Subject to the terms and conditions of this Agreement, Customer shall, at its own expense, defend eThor, its Affiliates and its and their directors, officers, employees and agents (the “eThor Indemnitees”) in any action, suit or proceeding arising as a result of any acts, errors or omissions of Customer and its Affiliates, including but not limited to: (i) breach of this Agreement; (ii) negligence or other tortious conduct; (iii) breach of a third party’s intellectual property rights or rights under Privacy Laws; or (iv) claims arising in connection with Customer’s Data (“Customer Claims”) and shall indemnify and hold the eThor Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded against any of the eThor Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for such defense and indemnification by Customer, (I) eThor shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (II) eThor shall give Customer sole control of the defense and settlement of such Customer Claims; (III) eThor shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (IV) eThor shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.

9. Confidentiality.

9.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $50,000 CDN OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3 Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) ANY CLAIMS FOR NON-PAYMENT, (III) DAMAGES ARISING FROM A PARTY’S BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR (IV) EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 8.

9.4 Essential Terms. THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY IN THESE TERMS CONSTITUTE AN ESSENTIAL PART OF THESE TERMS. EACH PARTY ACKNOWLEDGES THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, THE OTHER PARTY WOULD NOT AGREE TO THE TERMS IN THIS AGREEMENT.

10. Confidentiality.

10.1 Term of Agreement. This Agreement shall commence as of the Effective Date and unless specified otherwise on an Order Form, shall continue in effect for an initial term of one (1) year (the “Initial Term”). Thereafter, the Agreement shall be automatically renewed for additional one (1) year renewal terms (each a “Renewal Term” and together with Initial Term, the “Term”), unless either party gives written notice of non-renewal to the other party at least ninety (90) days prior to the end of the Initial Term or any Renewal Term hereof.

10.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) upon notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

10.3 Suspension of Service. If Customer fails to provide an updated payment method per Section 4.2 above or if Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, eThor reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full. No fees will be due for suspended Service during any period of time when such Service is suspended.

10.4 Outstanding Fees. Termination, suspension, or expiration of this Agreement shall not relieve Customer of the obligation to pay any Subscription Fees accrued or payable to eThor prior to such termination, suspension, or expiration. Upon termination by eThor under Section 10.2, all applicable Subscription Fees for the remainder of the Subscription Term shall become due immediately.

10.5 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 5 through 12.

11. Confidentiality.

11.1 Publicity. During the Term, eThor may, with Customer’s prior written consent, use Customer’s corporate name and logo on the eThor website and in presentations and other marketing materials created by eThor for the purpose of identifying Customer as a customer of eThor and the Service. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent.

11.2 Relationship of the Parties. The parties are independent contractors. This Agreement do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.3 No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.

11.4 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to eThor shall be addressed to the attention of the Chief Executive Officer (CEO). Notices to Customer shall be addressed to Customer’s contact specified in the Order Form.

11.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated in this Agreement, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.7 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party, except that this Agreement may be assigned by eThor without Customer’s consent: (a) to a person or entity who acquires all or substantially all of eThor’s assets, stock or business, and (b) to any Affiliate or subsidiary of eThor; in each case, so long as the assignee accepts the obligations hereunder in writing. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.8 Governing Law. This Agreement shall be governed by the laws of the State of Texas. No choice or conflict of laws rules of any jurisdiction shall apply to this Agreement. Customer agrees that Customer shall only bring any action or claim in respect to this Agreement in the state or federal courts located in Austin, Texasand Customer hereby consents to the exclusive jurisdiction of such courts for any action or claim brought by Customer. Notwithstanding the foregoing, each party shall be entitled to seek legal or equitable relief (including injunctive relief) in any jurisdiction with a reasonable connection to the subject matter of this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. Each party hereby waives any right to jury trial in connection with any action or claim in any way arising out of or related to this Agreement.

11.9 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, pandemic, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.

11.10 Export. Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.

11.11 Entire Agreement. This Agreement, including all Order Forms hereto, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms in the Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any of Customer’s purchase orders or in any Customer’s other order or purchase documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.