TERMS OF SERVICE

For Customers using daniolacorp.com (the “Platform“) the following “Terms of Service” govern your use of the Platform and the products and services made available by Daniola via the Platform and otherwise (the “Services” as more particularly defined below).  These Terms of Service are a legal agreement and contract between you (“you”, “your”, or “Customer”) and Daniola, and incorporates the Privacy Policy at https://daniolacorp.com/privacypolicy.

BY REGISTERING FOR USE OF THE SERVICES, BY BEING ONBOARDED, OR BY EXECUTING THESE TERMS OF SERVICE BY DOCUSIGN OR BY CLICKING “ACCEPT”, OR BY ACCESSING OR USING THE PLATFORM AND/OR THE SERVICES, CUSTOMER ENTERS INTO A BINDING LEGAL CONTRACT AND AGREEMENT WITH DANIOLA, AND CONFIRMS THAT CUSTOMER ACCEPTS AND AGREES TO ALL THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE.

‍CUSTOMER ACKNOWLEDGES AND CONFIRMS (A) CUSTOMER HAS READ AND UNDERSTANDS THESE TERMS OF SERVICE; (B) CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE LEGAL CAPACITY, RIGHT, POWER, AND AUTHORITY TO ENTER INTO A BINDING LEGAL CONTRACT WITH DANIOLA AND ACCEPT AND AGREE TO THESE TERMS OF SERVICE; (C) WHERE CUSTOMER ACCEPTS THESE TERMS OF SERVICE FOR AN ORGANIZATION, CUSTOMER HAS LEGAL AUTHORITY TO CONTRACTUALLY BIND THAT ORGANIZATION; AND (D) CUSTOMER AND ANY ORGANIZATION THAT CUSTOMER CONTRACTS ON BEHALF OF ACCEPT THESE TERMS OF SERVICE, AND AGREE TO BE LEGALLY BOUND BY ALL ITS TERMS AND CONDITIONS.

Definitions

In these Terms of Service, the following terms shall have the respective meanings indicated below:

“Acceptable Use Policy” has the meaning stated in Section 10.

“Aggregated Statistics” has the meaning set forth in Section 21.
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“Applicable Laws” means any and all (i) laws, statutes, rules, regulations, by laws, codes, treaties, constitutions and ordinances, (ii) orders, directives, judgments, decisions, decided cases and precedents, common law rules or laws, decrees, awards or writs of any court (including a court of equity), arbitrator or arbitration panel, or any Governmental Authority or other body exercising adjudicative, regulatory, judicial or quasi-judicial powers, including any stock exchange, and (iii) policies, guidelines, standards, requirements, notices and protocols of any Governmental Authority which are applicable to or govern Customer, Daniola or the transactions contemplated by these Terms of Service.  Without limitation, Applicable Laws include the laws of Canada and the laws of Alberta, including the Criminal Code (Canada), Corruption of Foreign Public Officials Act (Canada), and the United States Foreign Corrupt Practices Act.

“Authentication ID” means a security mechanism by which an Authorized User identifies herself or himself to the Services and gains access thereto, which security mechanism may include user identification, passwords, digital certificates or any other similar process mechanism for authentication and recognition as determined by Daniola from time to time, and which shall, without limitation, be in compliance with the requirements stated under Onboarding.

“Authorized User” means a Permitted User who Customer has authorized to access and use the Services.

“CASL” means Canada’s Anti-Spam Legislation, namely An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radiotelevision and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23), as amended.

“CASL Consent” means consent of Customer and its Authorized Users to receive commercial electronic messages (as the term “commercial electronic messages” is defined in CASL) from Daniola, and from Third-Parties sending electronic commercial messages on behalf of Daniola.

“Claim” means any civil action, suit, lawsuit, claim, demand, proceeding, lien, or judgment for any loss, damages, liability, debt, costs, or other compensation or legal or equitable remedy of any kind (including reasonable attorneys’ or lawyers’ fees and other litigation expenses and disbursements).

“Confidential Information” means and includes these Terms of Service, the Services, Customer Data, the Content of either Party, and all ideas, designs, business models, databases, drawings, documents, diagrams, formulas, test data, marketing, financial or personnel data, sales information, customer or supplier information, including information provided by such customers or suppliers, or any other information already furnished and to be furnished or made available by one Party to the other, whether in oral, written, graphic or electronic form including any such information exchanged during informational sessions designated as confidential, including, without limitation, information concerning a Party’s actual and potential customers and other Intellectual Property Rights of such Party, provided, however, that Confidential Information shall not include any data or information: (i) that, at the time of disclosure, is in or, after disclosure, becomes part of the public domain, through no act or failure on the part of the receiving Party, whether through breach of these Terms of Service or otherwise; (ii) that, prior to disclosure by the disclosing Party, was already in the possession of the receiving Party, as evidenced by written records kept by the receiving Party in the ordinary course of its business, or as evidenced by proof of actual prior use by the receiving Party; (iii) independently developed by the receiving Party, by Persons having no direct or indirect access to the disclosing Party’s Confidential Information provided that the receiving Party provides clear and convincing evidence of such independent development; (iv) which, subsequent to disclosure, is obtained from a third-party Person: (A) who is lawfully in possession of the such information; (B) who is not in violation of any contractual, legal, or fiduciary obligation to either Party, as applicable, with respect to such information; and (C) who does not prohibit either Party from disclosing such information to others; or (v) is further disclosed with the prior written consent of the disclosing Party, but only to the extent of such consent.

“Content” means and includes text, trademarks, logos, HTML coding, domain names, links, graphics, images, photographs, audio, video, content, works of authorship, works subject to copyright, data, and databases.

“Customer” means an entity that has been accepted and approved by Daniola for Onboarding, and that is granted a License to access and use the Services in compliance with these Terms of Service. Where the context requires, references to Customer may include Customer’s Authorized Users.

“Customer Data” means collectively any data, files, documentation, or other information: (i) that Customer or any of its Authorized Users may upload to the Services when using the Services; and (ii) processed, used, or accessed through the use of the Services, but does not include Aggregated Statistics.

“Daniola Platform” means the website located at daniola.com, and the software and services available through the Platform to Customer and Customer’s Authorized Users.

“Documentation” means Daniola’s user manuals, handbooks, documentation, specifications, and guides relating to the operation, use, and function of the Services and provided or made available by Daniola to Customer either electronically or in hard copy form, and which may be amended or updated by Daniola from time to time.

“Effective Date” means the date that Daniola accepts these Terms of Service with Customer and commences Onboarding with Customer.

“Event of Default” means and includes (a) a Party filing a petition seeking to take advantage of any law relating to the bankruptcy or insolvency of that Party; (b) a Party being adjudicated to be bankrupt; (c) a Party being or becoming the subject of a petition seeking the liquidation, reorganization, winding-up, dissolution or adjustment of indebtedness of that Party; (d) a Party becoming insolvent or making an assignment for the benefit of creditors or if a receiver is appointed for that Party; and (e) only in the case of Customer, Customer committing a Suspension Event which remains uncured for more than seven (7) days following Daniola’s written demand that Customer cure such Suspension Event.

“Feedback” has the meaning stated in Section 22.

“Fees” means the charges, as set out in these Terms of Service, or otherwise in writing by Daniola from time to time, to be paid by Customer to Daniola for the performance of, and access to, the Services.

“Governmental Authority” means any domestic, foreign, or supranational government, whether federal, provincial, state, territorial or municipal; and any governmental agency, ministry, department, tribunal, commission, bureau, board, or other instrumentality, including international institutions, exercising, or purporting to exercise legislative, judicial, regulatory or administrative functions of, or pertaining to, government.

“Intellectual Property” means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its source code), tools, products knowledge, know-how, including without limitation, trade secrets, and other materials or things.

“Intellectual Property Rights” means: (a) any and all proprietary rights anywhere in the world provided under: (i) patent law; (ii) copyright law, including moral rights; (iii) trademark law; (iv) design patent or industrial design law; (v) semiconductor chip or mask work law; (vi) trade secret law; (vii) privacy law; or (viii) any other statutory provision or common law principle applicable to these Terms of Service which may provide a right in either: (A) Intellectual Property; or (B) the expression or use of Intellectual Property; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.

“Mine” means a hole or system of holes in the ground where Minerals are removed or extracted.

“Miner” means a Customer: (a) that owns legal mining rights to at least one Mine anywhere in the world, (b) whose Mine is verified and whose practices are governed by applicable ethical standards and Applicable Laws of the mining industry, and (c) that intends to use the Platform primarily for the sale, and auction of Minerals, and to seek investment or funding opportunities for mining, extraction, or production of Minerals.  

“Mineral” means a solid inorganic substance of natural occurrence, including coal, salt, metals, and metallic compounds, but excludes oil, petroleum, bitumen, and natural gas.

“Objectionable Content” means content that infringes any Applicable Laws, regulations or thirdparty rights, including human rights legislation, content which is obscene, indecent, pornographic, violent, seditious, offensive, defamatory, threatening, discriminatory, racist, liable to incite racial hatred, menacing, blasphemous, misleading, deceptive, or in breach of any person’s Intellectual Property Rights or rights of privacy or personality, or that constitutes a tort or other basis for civil action for damages or injunctive relief.

“Off-Taker” means a Customer which purchases, seeks, or intends to purchase Minerals from one or more Miners using the Services.

“Onboarding” has the meaning stated in Section 6.
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“Party” means either Daniola or Customer; and “Parties” means both Daniola and Customer.

“Permitted User” means an employee of Customer or an independent contractor who is an individual that performs all or substantially all of his or her work for Customer.

“Person” means any individual, estate, sole proprietorship, firm, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, limited liability company, corporation, body corporate, trustee, trust, Governmental Authority or other entity or organization and includes any successor to any of the foregoing.

Where an incident occurs involving the loss of, or unauthorized access to or disclosure of personal information under our control, where a reasonable person would consider that there exists a real risk of significant harm to an individual as a result of the loss or unauthorized access or disclosure, we may notify as required by law any Information and Privacy Commissioner, including, in some situations, the Privacy Commissioner for Canada, including providing any information required by law at the time to be provided to the applicable Commissioner.  We may also elect in any event to immediately notify you of any incident in the event we consider it reasonable in the circumstances.

“Suspension Event” means an event giving rise to Daniola’s right to suspend access to the Services, including any of the following: (a) any failure of Customer to pay Fees upon same becoming due; (b) any breach by Customer or any of its Authorized Users of the Acceptable Use Policy; (c) any breach by Customer of its representations and warranties given in these Terms of Service; (d) any unlawful, unpermitted, or infringing use of Daniola’s Intellectual Property, including in the Daniola Platform or the Services; (e) wrongful access to or disclosure or violation of Confidential Information; (f) failure by Customer to provide documentation and information requested by Daniola; and (g) Daniola reasonably determining that the conduct of Customer or any one or more of its Authorized Users constitutes a threat or attack on the Daniola Platform or the Services, or a disruption of the Services, or a security risk to the Services or the Daniola Platform.

“Services” means collectively the services to be provided by Daniola to Customer as described and set out in these Terms of Service, or as stated on the Daniola Platform or in the Services, or otherwise in writing by Daniola, and the Services shall include access to the Daniola Platform and its tracking and bid management system for Minerals, and access to the Documentation.
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“Term” has the meaning ascribed to it in Section 16.
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“Third-Party” means any Person other than Daniola or Customer.

“Third-Party Products” means software, Content, or other products or services provided under license or sold by third-party vendors (“Third Party Vendors“), with which the Services may interface, or which may provide certain functionality essential to the operation of the Services. Third Party Products may be licensed, provided, or sold to Daniola for incorporation and use in the Services as part of the Services.  Customer may also directly license or purchase Third Party Products from a Third-Party Vendor for use in connection with the Services.

“Vendor” means a Customer that offers goods and services that support the operations of Miners, and the transport and movement of Minerals from extraction to the market and end-users for such Minerals.
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“Virus” means a piece of code usually (but not necessarily) disguised as something else that causes some unexpected and, for the victim, usually undesirable, event and which is designed so that it may automatically spread to other computer users; the term “Virus” will also be deemed to include worms, cancelbots, trojan horses, harmful contaminants (whether self-replicating or not), nuisance-causing or otherwise harmful applets, and any other malicious or deleterious computer code or content.
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Interpretation
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Headings. The division of these Terms of Service into articles, sections, schedules and other subdivisions, and the inclusion of headings, are for convenience of reference only and shall not affect the construction or interpretation of these Terms of Service. The headings in these Terms of Service are not intended to be full or precise descriptions of the text to which they refer. Unless something in the subject matter or context is inconsistent therewith, references herein to Articles and Sections are to Articles and Sections of these Terms of Service.
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Currency. Unless otherwise specified, all references to monetary amounts, including the symbol “$”, are in respect of Canadian currency.
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Entire Agreement. these Terms of Service, together with any other documents to be delivered pursuant hereto, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions, and understandings, written or oral, between the Parties. Except as expressly provided in these Terms of Service, there are no representations, warranties, conditions other agreements or acknowledgements, whether direct or collateral, express or implied, that form part of or affect these Terms of Service. The execution or acceptance of these Terms of Service has not been induced by, nor do either of the Parties rely upon or regard as material, any representations, warranties, conditions, other agreements, or acknowledgements not expressly made in these Terms of Service or in any other documents expressly stated to be delivered pursuant to these Terms of Service.  

Governing Law. these Terms of Service, and the contractual relationships created herein, shall be governed by, and construed and enforced in accordance with, the laws in force in the Province of Alberta (excluding any conflict of laws rule or principle which might refer such construction to the laws of another jurisdiction). These Terms of Service shall be deemed to be a contract made in Alberta. The Parties hereto agree to submit to the exclusive jurisdiction of the courts of the Province of Alberta, or the Federal Court of Canada, as applicable, sitting at Calgary, and waive any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court, provided that, notwithstanding the foregoing, Daniola shall retain the option of commencing action against Customer in Customer’s home jurisdiction.
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Dispute Resolution. The Parties confirm their agreement in the foregoing to submit to the exclusive jurisdiction of the courts of the Province of Alberta, or the Federal Court of Canada, as applicable, sitting at Calgary, and waive any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court, provided that, notwithstanding the foregoing, Daniola shall retain the option of commencing action against Customer in Customer’s home jurisdiction.

However, prior to commencing any litigation, unless commercially unreasonable to not be required to do so, each Party agrees to utilize reasonable efforts to resolve any dispute, whether arising during the Term of these Terms of Service, or at any time after the expiration of termination of these Terms of Service, which touches upon the validity, construction, meaning, performance or affects these Terms of Service or the rights and liabilities of the Parties or any matter arising out of or connected with these Terms of Service, promptly and in an amicable and good faith manner by negotiations between the Parties.
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Severability. In the event that any provision (or any portion of a provision) of these Terms of Service shall, for any reason, be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provision hereof and these Terms of Service shall be construed as if such invalid, illegal or unenforceable provision (or portion of a provision) had never been contained herein in regards to that particular jurisdiction.

Modifications. Customer acknowledges and agrees that Daniola has the right, in its sole discretion, to modify these Terms of Service from time to time, and that the Terms of Service so modified become effective on posting in the Services or on the Daniola Platform. Customer agrees that it shall be responsible for reviewing and becoming familiar with any such modifications. Customer’s continued use of the Services after the effective date of all such modifications will be deemed acceptance of the modified Terms of Service.

Consent to Contract Electronically. Customer consents to contract and communicate electronically, and the provisions of the Electronic Transactions Act (Alberta) as amended, shall apply to these Terms of Service.    

Notices. Every notice or other communication hereunder shall be deemed to have been duly given and made if (a) in the case of Customer, such notice or communication in writing is delivered by, at Daniola’s option, posting in the Services or by email to Customer’s email address designated as its user name, and shall be deemed delivered upon posting in the Services or sending via email, and (b) in the case of Daniola, delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, to Daniola’s corporate headquarters address available at www.daniolacorp.com and shall be deemed given upon receipt by Daniola.

Further Assurances.  Each Party shall take such action (including, but not limited to, the execution, acknowledgment, and delivery of documents) as may reasonably be requested by the other Party for the implementation or continuing performance of these Terms of Service.

Relationship. The Parties are independent contractors, and no other relationship is intended. Nothing herein shall be deemed to constitute either Party as an agent, representative or employee of the other Party, or both Parties as joint venturers or partners for any purpose. Neither Party shall act in a manner that expresses or implies a relationship other than that of independent contractor. Each Party shall act solely as an independent contractor and shall not be responsible for the acts or omissions of

the other Party. Neither Party will have the authority or right to represent nor obligate the other Party in any way except as expressly authorized by these Terms of Service.

Enurement. These Terms of Service shall enure to the benefit of and be binding upon each of the Parties hereto and their permitted successors and assigns.

Assignment. Neither these Terms of Service, nor any rights or obligations hereunder shall be assignable by Customer without the prior written consent of Daniola.

Waiver. The waiver by either Party of a breach or default of any provision of these Terms of Service by the other Party shall not be effective unless in writing and shall not be construed as a waiver of any succeeding breach of the same or of any other provision. Nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege by such Party constitute a waiver.

Counterparts and Electronic Execution and Delivery. Daniola will determine the means by which these Terms of Service shall be executed.  Subject to the forgoing, these Terms of Service may be executed electronically or digitally, or by way of paper copies signed by the Parties, in which case these Terms of Service may be executed in counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument. To evidence its execution of an original counterpart of these Terms of Service, a Party may send a copy of its original signature on the execution page hereof to the other Party as a scanned copy to PDF format by e-mail and such transmission shall constitute delivery of an executed copy of these Terms of Service to the receiving Party as of the date of receipt thereof by the receiving Party.

Survival of Covenants. Notwithstanding the termination or expiration of these Terms of Service for any reason, the covenants set out in Section 2 (Interpretation); Section 4 (Ownership); Section 8 (Representations and Warranties of Customer); Section 11 (Customer Indemnities); 17 (Termination); 19 (Customer Data); Section 20 (License to Customer Data; Section 21 (Aggregated Statistics); Section 22 (Feedback); Section 31 (Audit Rights); Section 32 (Confidentiality); Section 34 (EXCLUSION OF ALL OTHER WARRANTIES AND CONDITIONS); Section 35 (LIMITATION OF LIABILITY); and Section 36 (CAP ON DAMAGES); and those provisions set out in Section 1 (Definitions), as necessary to interpret the foregoing provisions, of these Terms of Service shall survive any such termination or expiration.

Additional Rules of Interpretation

- In these Terms of Service, unless the context requires otherwise, words in one gender include all genders and words in the singular include the plural and vice versa.
- Wherever the words “include”, “includes” or “including” are used in these Terms of Service, they shall be deemed to be followed by the words “without limitation” and the words following “include”, “includes” or “including” shall not be considered to set forth an exhaustive list.
- The terms ” these Terms of Service “, “this agreement”, “hereof”, “hereunder” and similar expressions refer to these Terms of Service and not to any particular article, section or other portion hereof and include any agreement supplemental hereto.
- Unless otherwise defined herein, words or abbreviations which have well-known trade meanings are used herein with those meanings.

Grant of License. Conditional always upon Customer’s continued compliance with all the terms and conditions of these Terms of Service, including timely and up-to-date payment of all required Fees, and for the duration of the Term, Customer is granted a non-exclusive, non-transferable, non-sublicensable, limited, and revocable license permitting Customer and its Authorized Users to access and use the Services, only as permitted by the operation of the Services, for Customer’s business operations.  Any use by Customer and its Authorized Users of the Documentation will be limited to Customer’s internal business purposes.  Only Permitted Users may be authorized by Customer to become Authorized Users, and only to a maximum number of Authorized Users as may be directed by Daniola from time to time.

Ownership. Customer acknowledges and agrees that, as between Customer and Daniola, Daniola owns all worldwide right, title, and interest, including all Intellectual Property Rights, in and to: (i) the Daniola Platform; (ii) the Services; (iii) the Documentation; and (iv) any modifications, enhancements, upgrades, updates or customization to the foregoing. Customer does not acquire any rights, title, or ownership interests of any kind whatsoever, express or implied, in any of the foregoing other than the license granted herein.  All rights not granted by Daniola are expressly reserved.  The Services consist of services, software, and Content, and are not a sale of goods. The Parties agree that the United Nations International Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Service, the Services, the Daniola Platform, or the Documentation.

Fees. Customer agrees to pay Daniola all applicable Fees related to Customer’s use of the Services, commencing on the Effective Date, including the following:   for each Customer, a subscription fee of $150.00 per month, paid in advance;   for each Customer that is also a Miner, a listing fee of $500.00 for each product or service listed in the Services, paid in advance; and all applicable taxes, levies, and other charges imposed by any Governmental Authority with authority over the Parties, or either of them.

Onboarding
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- Daniola has the right, in its sole and unfettered discretion, to carry out due diligence regarding Customer and any one or more of its Authorized Users, and has the right, but not the obligation, to reject any Customer or Authorized User being granted any rights to access the Services for any reason, or for no reason at all. Customer gains rights under these Terms of Service subject to, and conditional upon, Daniola’s approval and acceptance.

Without limitation of the foregoing, in order to be granted a license to access the Services, Customer must first complete the following requirements of Onboarding, as well as any other specific requirements or conditions communicated by Daniola:

- Customer must accept and agree to these Terms of Service in the manner required by Daniola;
- Customer must pay any deposits, advance payments, or other payments required by Daniola;
- Customer must set up Customer’s account by creating an Authentication ID including a username consisting of Customer’s valid email address, which email address Customer agrees and undertakes to maintain fully and continuously operational as it will or may be used by Daniola to communicate with Customer regarding the Services, and may be necessary to recover any lost password;
- As part of its Authentication ID, Customer must also create a password that complies with Daniola’s requirements, namely the password must consist of at least ten characters that are a combination of letters (both uppercase and lowercase) and numbers or special characters that is not used by Customer for any other website or online service;
- Customer will require its Authorized Users to create usernames and passwords in the same manner as the foregoing with respect to their Authentication ID’s.

Customer will fully comply with Daniola’s due diligence and “know your customer” requirements, including providing Daniola with all requested documentation, which may include certified copies of government records, certificates, permissions, grants, orders, apostilles, and other official records, and may be required in digital form, or original hard copy/paper form.  Customer will continue to completely and continually comply with Daniola’s ongoing requests for such documentation. Customer’s failure to comply with the foregoing may result in Daniola declining to accept these Terms of Service with respect to Customer, or in a Suspension Event, and to Customer being denied access to the Services.

Mutual Representations of the Parties. Each Party represents to the other that:

- It is a legal entity duly organized, validly existing and in good standing under the laws of its incorporation and it has full power and authority to enter into these Terms of Service and to perform each and every covenant and agreement herein contained; these Terms of Service have been duly authorized, executed and delivered by it and constitutes a valid, binding and legally enforceable agreement of it;

The execution and delivery of these Terms of Service, and the performance of the covenants and agreements herein contained, are not, in any manner or to any extent, limited or restricted by, and are not in conflict with, any commercial arrangements, obligations, contract, agreement or instrument to which it is either bound or subject; and the execution and delivery of these Terms of Service and the performance of its covenants and agreements herein contained shall comply in all respects with all Applicable Laws to which it or its business is subject.

Representations and Warranties of Customer.  Customer represents and warrants to Daniola as follows:

- Customer has fully read, understands, and freely accepts all the terms and conditions of these Terms of Service;

- Where Customer accepts these Terms of Service on behalf of an organization, group, or other Third-Party Person, Customer does so with the lawful authority and capacity to contract on behalf of and legally bind such Third-Party Person to these Terms of Service;

- Customer has either obtained independent legal advice and counsel prior to accepting and entering into these Terms of Service, or Customer has freely waived same;

- All information provided by Customer to Daniola, whether pursuant to Onboarding, or otherwise at any time, and from time to time, will be complete, accurate, and truthful. Customer shall be responsible and fully liable for the accuracy, timeliness, truthfulness, and completeness of information provided to Daniola;

- All documents and records furnished to Daniola, whether pursuant to Onboarding, or otherwise at any time, and from time to time, are and will be complete and accurate copies of the original documents and, where stated to be certified by a Governmental Authority, will in fact be so certified;

- Customer will fully comply with all of the terms and conditions of these Terms of Service, including but not limited to the Acceptable Use Policy;

- Customer will fully comply with all Applicable Laws, including without limitation laws and legislation applicable to the privacy of individuals and the collection, use, disclosure, retention, and destruction of personal information;

- All CASL Consents obtained by Customer and confirmed as being valid and in effect will in fact be valid and in effect, and Daniola will be entitled to rely on such CASL Consents until Customer advises that any one or more such consents are withdrawn, expired, or no longer valid; and

- Customer confirms and accepts that Customer shall be fully responsible and liable for the conduct of its Authorized Users; and for all activities that occur under or with respect to Customer’s account with Daniola with respect to the Services.

Customer Responsibilities. In addition to its other obligations contained in these Terms of Service, Customer will:

- be responsible for procuring, installing, operating, supporting, and maintaining Customer’s systems, including computer hardware and software, including browsers, necessary for Customer to access the Services;

- be responsible for procuring and maintaining communication services, including high speed internet connections between Customer’s systems and the Services and the Daniola Platform;   assign, record and control the issuance and use of all Authentication IDs;

- be responsible for the accuracy, completeness, and adequacy of all Customer Data, for the management, manipulation and processing of Customer Data, and the back up and maintenance of all Customer Data;

- obtain and provide CASL Consents to Daniola with respect to all directors, officers, employees, and contractors of Customer receiving electronic communications from Daniola, including all Customer’s Authorized Users and, where any CASL Consent expires, is withdrawn, or is no longer valid, immediately advise Daniola of such expiry, withdrawal, or loss of validity in writing;

- use the Services, including the Daniola Platform and the Documentation, by itself and by its Authorized Users, in accordance with all Applicable Laws, all the terms and conditions of these Terms of Service, and the Documentation; and

- comply, at all times, with all Applicable Laws, and the policies and directions of Daniola with respect to the use of the Service.

Acceptable Use Policy. Customer and its Authorized Users will only access and use the Services for lawful purposes and only in compliance with these Terms of Service.  Without limitation; Customer and its Authorized Users shall not:

- use the Services for improper or unlawful purposes, or contrary to Applicable Laws; use the Services in any manner contrary to Daniola’s policies or procedures as published or provided from time to time;

- include, or knowingly allow others to include, any Objectionable Content or introduce Viruses to the Services, and Customer shall institute such security procedures and safeguards, including contractual prohibitions and restricted levels of access, as necessary to prevent the posting, uploading or inclusion of any Objectionable Content or Viruses to the Services;

- intercept or attempt to intercept any messages transmitted to and from the Services that are not intended for Customer or any of its Authorized Users;

- take any action that imposes an unreasonable or disproportionately large load or demand on the Services;

- copy, modify, reverse engineer, decompile, translate, disassemble, or reverse compile the Services, or any component thereof, including the Documentation and any software used by Daniola, attempt to view, display, or print such software, including the source code thereto, or develop any functionally compatible or competitive products, services, or software to the Services

- permit any Third-Party Person to access or use the Services;

- develop any derivative works from the Services, including the Documentation;

- rent, lease, lend, sell, license, sub-license, assign, distribute, disclose, publish, transfer, communicate, display, or otherwise make available the Services, including the Documentation, except as expressly permitted under these Terms of Service;

- copy or download any software used by Daniola to provide the Services; use the Services to infringe, violate, or misappropriate any Intellectual Property Right of any Third Party.

- use the Services to provide products or services to third-party Persons, or use the Services as a service bureau; or  remove any copyright or other proprietary rights notice from the Services or the Documentation or any copies thereof.

Customer Indemnities.  Customer will indemnify, defend, and forever save and hold harmless Daniola, together with its directors, officers, shareholders, employees, contractors, and agents, from and against the following:

- Any breach by Customer of its representations and warranties under these Terms of Service;
- Any default by Customer of its obligations under these Terms of Service;
- Any Claim made against Daniola from a Third-Party Person as a result of any use or misuse of Customer’s Authentication IDs, whether or not such use is by an Authorized User, or is otherwise authorized by Customer; and
- Any breach by Customer or its Authorized Users of the Acceptable Use Policy.

Suspension. Where a Suspension Event occurs, Daniola may, without notice to Customer, and without any liability of any kind to Customer, immediately suspend access to the Services, and maintain such suspension until Customer has cured its default or conduct comprising a Suspension Event.   Daniola shall have the right, but not the obligation, to demand, by written notice, that Customer cure its default or conduct comprising a Suspension Event, failing which Daniola shall have the right, but not the obligation, to deem that an Event of Default has occurred.

Viruses and Objectionable Content. If Daniola, in its absolute discretion, forms the view that any Customer Data or any other information or files uploaded by Customer or any of its Authorized Users contains or includes a Virus or constitutes Objectionable Content, Daniola may remove such Customer Data, information or file from the Services and take such other action as Daniola deems necessary to protect the integrity and operation of the Services. Any costs associated with such removal may be charged by Daniola to Customer and Customer will pay such charges to Daniola promptly. Daniola shall notify Customer of its actions pursuant to the foregoing as soon as reasonably possible.

Late Payment.  Where Customer is in default of timely payment of Fees, in addition to Daniola’s right to suspend access to the Services, declare a Suspension Event, or declare and Event of Default and terminate these Terms of Service, Customer agrees, both before and after judgment, to pay interest to Daniola at the rate of eighteen per cent (18%) per annum, compounded semi-annually, on all overdue Fees or other amounts, together with all costs of collection, including legal fees and disbursements on a solicitor (or lawyer or attorney) and own client basis.

Event of Default.  Where an Event of Default occurs, Daniola shall have the right, but not the obligation, upon written notice to Customer, to immediately terminate these Terms of Service without liability to Customer.

Term. The term of these Terms of Service begins on the Effective Date and continues indefinitely until terminated.

Termination.  In addition to any other express termination right set forth in these Terms of Service:

- Daniola may terminate these Terms of Service for any reason, or no reason at all, upon thirty (30) days’ written advance notice to Customer;
- Customer may terminate these Terms of Service for any reason, or no reason at all, upon sixty (60) days’ advance notice to Daniola;
- except for an Event of Default, either Party may terminate these Terms of Service, effective on written notice to the other party, if the other Party materially breaches these Terms of Service and such breach: (i) is incapable of cure; or (i) being capable of cure, remains uncured thirty days after the non-breaching Party provides the breaching Party with written notice of such breach; and
- either Party may terminate these Terms of Service, effective immediately upon written notice to the other Party, if the other Party commits an Event of Default, or an Event of Default occurs.

Effect of Termination. No termination will eliminate, diminish, or affect Customer’s obligation to pay all Fees due as of the date of termination.  Upon Termination, Customer and its Authorized Users will have no right or ability to access the Services, and all grants of licenses to Customer from Daniola will terminate.  Subject to up-to-date payment of all Fees due to Daniola, Customer shall be granted the ability to access and download its Customer Data for a period of thirty days from the date of termination, following which Daniola will be entitled to delete all Customer Data from the Services, without any liability to Customer.

Customer Data. Customer will ensure that Customer Data and any Authorized User’s data or use of Customer Data will not violate any policy or terms referenced in or incorporated into these Terms of Service or any Applicable Laws. Customer acknowledges and agrees that Daniola: (a) will not be responsible for the accuracy, completeness or adequacy of any Customer Data or the results generated from any Customer Data uploaded to the Services or the Daniola Platform and processed by the Services; (b) has no control over any Customer Data or the results threfrom; (c) does not purport to monitor Customer Data; and (d) shall not be responsible to back up or maintain any back up of the Customer Data or portion thereof.

License to Customer Data. Customer hereby grants to Daniola:

-  a non-exclusive, royalty-free, fully paid, and worldwide license for the Term of these Terms of Service, and during any period following termination where Customer Data remains in the Services, to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Daniola to provide the Services to Customer; and
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- a non-exclusive, perpetual, irrevocable, royalty-free, fully paid worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.

Aggregated Statistics. Notwithstanding anything to the contrary in these Terms of Service, Daniola may monitor Customer’s use of the Services, and collect and compile data and information related to Customer’s use of the Services to be used by Daniola in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics“). As between Daniola and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, will exclusively belong to Daniola. Customer acknowledges and agrees that Daniola may compile Aggregated Statistics based on Customer Data input into the Services. Customer further acknowledges and agrees that Daniola may (i) copy, display, communicate, publish, distribute, use, disclose, and make Aggregated Statistics publicly available in compliance with Applicable Laws, provided that such Aggregated Statistics do not identify Customer, disclose personal information in contravention of Applicable Laws, or disclose Customer’s Confidential Information.  

Feedback. If Customer or any of its Authorized Users, employees, contractors, or agents provides any suggestions, recommendations, or requests for changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), all such Feedback is and will be treated as non-confidential and non-proprietary to Customer. Customer will assign, and hereby does assign to Daniola on Customer’s behalf, and shall cause Customer’s Authorized Users, employees, contractors, and agents to assign, all right, title, and interest in all such Feedback.  Daniola shall have the right, but not the obligation, to use, without any attribution or compensation whatsoever to Customer or any Third-Party Person, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in such Feedback, for any purpose whatsoever, including incorporation into the Services.

Third-Party Vendors and Third-Party Products

Customer acknowledges and agrees that certain aspects, components, or portions of the Services are, or may be, comprised of, include, interface with, or otherwise require Third-Party Products and are provided to Daniola by Third-Party Vendors for license, sublicense, delivery, resale, or provision to Customer, or inclusion in the Services.  Daniola has no control over the actions of such Third-Party Vendors, or the performance, nature, quality, availability, or suitability of their Third-Party Products.  Accordingly, notwithstanding any term or condition of these Terms of Service, in no event will the rights of Customer to assert or pursue any Claim against Daniola with respect to any Third-Party Product exceed the obligations of the associated or applicable Third-Party Vendor (a) to fully compensate Customer directly, or (b) to fully indemnify, compensate, or reimburse Daniola for and against any such Claim by Customer.

Further, Daniola shall have the right to modify or terminate, without liability to Customer, any portion of the Services where the actions, errors, or omissions of any one or more Third-Party Vendors, or changes to the performance, nature, quality, availability, or suitability of the applicable Third-Party Products of such Third-Party Vendors make such portion of the Services no longer available without modification, or at all, or otherwise commercially unreasonable to provide.  Daniola will make commercially reasonable efforts to provide Customer with notice of any termination or change pursuant to the foregoing, but Customer acknowledges and agrees that Daniola may not receive notice from such Third-Party Vendors, and therefore may not be able to provide notice to Customer. Where Customer receives such a notice from any such Third-Party Vendor, Customer will notify Vendor.  

Service Levels.  Subject to the terms and conditions of these Terms of Service, Daniola will use commercially reasonable efforts to make the Services available in accordance with any service levels posted from time to on the Platform or in the Services.

Support. These Terms of Service do not entitle Customer, or any of its Authorized Users, to any support for the Services.

Access to the Services and Daniola Platform. Customer acknowledges and agrees that Daniola will not responsible or liable with respect to any communication over the public Internet, or for the operations of any Third-Party network (including Daniola’s own service providers) or any such network’s failure to deliver communication or data to and from the Services, or the Daniola Platform on a timely basis.    

Security Requirements. Both Parties shall implement and maintain commercially reasonable safeguards and controls to deter and for the detection, prevention and correction of any unauthorized intrusion, access to, or use of the Services, the Daniola Platform, Customer Data and the networks, systems, computers, and other devices of Customer. Customer acknowledges and agrees that, notwithstanding Daniola taking such measures, such measures may not prevent unauthorized electronic intruders to access the Daniola Platform or the Services, including Customer Data, through the Internet or through other forms of electronic communication. If such unauthorized electronic intruders are able to bypass Daniola’s security protocols and safeguards, such unauthorized electronic intruder may change, delete or otherwise corrupt the contents and data contained in the Daniola Platform, or in the Services, including the Customer Data. In any and all cases, Daniola shall not be liable to Customer, and hereby disclaims responsibility or liability, with respect to any action, destructive or otherwise, by any unauthorized electronic intruder.

Maintenance. From time to time, it will be necessary for Daniola to perform maintenance on the Services and the Daniola Platform. Such maintenance includes routine maintenance to ensure the continued provision of the Services through the continued operation of the Daniola Platform or upgrading, updating, or enhancing the Services and the Daniola Platform. Daniola shall use its commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of the Services or the Daniola Platform to Customer, having regard to the geographic location and time zone of Daniola. To the extent Daniola is reasonably able, Daniola shall notify Customer in advance of any scheduled maintenance by posting a message in the Services or on the Daniola Platform of the scheduled maintenance time and the anticipated duration of such maintenance.

Changes. Daniola may, at any time, with or without notice to Customer: (a) make changes that are necessary to comply with applicable safety, security or other statutory requirements or orders from applicable Governmental Authorities; (b) supplement or make changes to the Documentation and to Daniola’s rules of operations, access procedures, security and privacy procedures and policies; and (c) change the components, type and location of the Services or the Daniola Platform.

Authentication IDs. Customer shall control and maintain the security of all Authentication IDs. Customer shall be solely responsible for all instructions, commitments and other actions or communications taken under any of its Authentication IDs. Customer shall promptly report to Daniola any errors or irregularities in the Service or the Daniola Platform or any unauthorized use of any part thereof and inform Daniola immediately if any Authentication ID becomes known to any Third-Party Person who is not authorized to possess such Authentication ID.

Audit Rights

Daniola’s Audit Rights:

- Daniola reserves the right to monitor and audit Customer’s and its Authorized Users’ usage of the Services for the purpose of (among others) ensuring compliance with the terms and conditions of these Terms of Service. Any such audit may be carried out by Daniola, or a third party authorized by Daniola, at Daniola’s expense.

- If Daniola’s monitoring activities or its audit pursuant to the foregoing reveals that Customer’s or any Authorized User’s use of the Services is in contravention of these Terms of Service including any Applicable Laws, then Daniola may immediately declare a Suspension Event, and suspend and discontinue the Services to Customer or to that specific Authorized User, at Daniola’s sole discretion and without notice to Customer. Daniola shall notify Customer of such suspension as soon as reasonably possible, which notice shall set out the circumstances of the suspension. If Customer rectifies the situation to Daniola’s satisfaction, then Daniola will reinstate the Services. If Customer does not rectify the situation within ten days, then it shall be deemed an Event of Default, and Daniola shall be free to terminate these Terms of Service and pursue any remedies available to it.

- If Daniola’s audit reveals the use of the Services by Customer is in excess of any permitted level set by Daniola or (ii) any Authentication ID has been provided to a person who is not an Authorized User, or a Permitted User, or access to the Services was otherwise granted to a Person who is not an Authorized User, or the number of Authentication IDs granted by Customer exceeds any number of Authorized Users set by Daniola (where Daniola has set such number), Customer shall, without delay, pay Daniola the amount of Fees required for such level of use or number of Authorized Users based on Daniola’s then current list price for the Services. In case of unauthorized use of the Services, whether by Customer, an Authorized User, or another person, Daniola reserves the right to deny access to the Services to Customer or such Authorized User or other person.

Customer’s Regulatory Audits

- Daniola shall provide to such auditors (including external auditors and Customer’s internal audit staff or agents) as Customer may designate in writing, access to appropriate Daniola personnel and subcontractors, and to reasonable data, records and supporting documentation maintained by Daniola with respect to the Services, for the purpose of performing audits and inspections to enable Customer to satisfy applicable statutory and regulatory requirements or to certify compliance with Applicable Laws, and solely to the extent required to satisfy such requirements. The scope of such audits shall be limited solely to that which is necessary to enable Customer to satisfy its statutory or regulatory compliance obligations and may include, without limitation, and when applicable: (A) Daniola’s practices and procedures; (B) any controls as set out and which forms part of Daniola’s applicable security requirements and disaster recovery and back-up procedures.

- Customer and its auditors shall use commercially reasonable efforts to conduct such audits in a manner that will result in a minimum of inconvenience and disruption to Daniola’s business operations. Audits may be conducted only during normal business hours. Customer will provide Daniola with reasonable prior written notice of each audit, but with at least thirty (30) calendar days. Customer and its auditors will not be entitled to audit: (A) data or information of other customers or clients of Daniola; or (B) any Confidential Information of Daniola that is not necessary for purposes of the audit. Daniola will use commercially reasonable efforts to cooperate in the audit, will to the extent applicable and reasonably practicable, convert any technical records maintained in an electronic format into a readily understandable format, or a format that can be readily understood without need for special equipment or specialized knowledge; will make available, on a timely basis, the information reasonably required to conduct the audit; and will assist the designated employees and agents of Customer or its auditors as reasonably necessary. To the maximum extent possible, audits shall be designed and conducted (in such manner and with such frequency) so as not to interfere with the provision of the Services. All information learned or exchanged in connection with the conduct of an audit, as well as the result of any audit, constitutes Daniola Confidential Information. Each Party shall maintain, during the Term and thereafter as required by Applicable Law, a complete and accurate set of files, records and books and accounts of their transactions hereunder.

- In addition to the audit referred to in the foregoing paragraph, Daniola acknowledges that Customer may be subject to statutory audits and other requests for information from taxation and other Governmental Authorities. Customer shall notify Daniola in a timely manner after being contacted by such Governmental Authority regarding such an audit. Daniola shall respond reasonably to any requests from such Governmental Authority regarding Customer according to Customer’s direction, subject to Daniola’s obligations under Applicable Law. Except as otherwise required by Applicable Law, if Customer is contacted by a Governmental Authority regarding such an audit, Daniola may provide information to such Governmental Authority only under the direction of Customer. Daniola shall provide such information in a timely manner either to Customer or, at Customer’s request, directly to the applicable Governmental Authority. As part of this audit process, Daniola may be required to answer questions from Governmental Authorities with respect to its processing of certain transactions for Customer. Customer shall send a representative to be present at all such discussions with such Governmental Authorities if and to the extent not prohibited by Applicable Law.

- Any Customer audits or provision of information by Daniola will be conducted at Customer’s expense, and Customer will pay to Daniola all Fees or other charges or expenses associated with, or incurred by Daniola, with respect to Customer audits or provision of information by Daniola.

Coordination of Regulatory Audits – Customer acknowledges that the audits set out in the foregoing are disruptive to the provision of the Services. In order to satisfy all audit requests from Customer and to Daniola’s other customers; Customer hereby agrees that Daniola may hire an independent third-party auditor to conduct an audit in satisfaction of the foregoing, and to provide the results of such audit to Customer in lieu of Customer conducting its own audit pursuant to the foregoing.  Alternatively, and if consented to by Daniola, Customer shall coordinate with Daniola regarding the timing, scope and processes of any audit conducted by Customer hereunder to minimize any disruption to the Services and duplication of effort with any other similar audit.

Confidentiality

Each Party acknowledges that all Confidential Information consists of confidential and proprietary information of the disclosing Party. Each Party shall, and shall cause its employees, agents and contractors and, in the case of Customer, its Authorized Users, to hold Confidential Information of the other Party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with no less than a reasonable degree of care commensurate with the nature and importance of such Confidential Information. Each Party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under these Terms of Service, and not to release, disclose, communicate, or make the other Party’s Confidential Information available to any Third-Party Person other than employees, agents and contractors of the Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under these Terms of Service.

In the event that either Party receives a request to disclose all or any part of the Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or by a Governmental Authority, such Party agrees to, unless prohibited by Applicable Laws: (i) immediately notify the other Party of the existence, terms and circumstances surrounding such a request; (ii) consult with the other Party on the advisability of taking legally available steps to resist or narrow such request; and (iii) if disclosure of such Confidential Information is required, exercise its best commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed Confidential Information which the other Party so designates.

Each Party acknowledges and agrees that any unauthorized use or disclosure by it of any of the other Party’s Confidential Information, in whole or part, will cause irreparable damage to the disclosing Party, that monetary damages would be an inadequate remedy and that the amount of such damages would be extremely difficult to measure. The receiving Party agrees that the disclosing Party shall be entitled to seek temporary and permanent injunctive relief to restrain the receiving Party from any unauthorized disclosure or use. Nothing in these Terms of Service shall be construed as preventing the disclosing Party from pursuing any and all remedies available to it for a breach or threatened breach of a covenant related to its Confidential Information, including the recovery of monetary damages from the receiving Party.

Limited Warranty. Daniola warrants that it will perform and provide the Services on a commercially reasonable basis using a commercially reasonable level of care and skill.  In the event of any breach of the foregoing express limited warranty, Customer’s only and exclusive remedy is to terminate these Terms of Service and its contractual relationship with Daniola, and cease using the Services.

EXCLUSION OF ALL OTHER WARRANTIES AND CONDITIONS. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THESE TERMS OF SERVICE, THE SERVICES ARE PROVIDED “AS IS”, “WHERE IS”, AND “AS AVAILABLE”, WITHOUT ANY WARRANTY, GUARANTEE, OR CONDITION WHATSOEVER. DANIOLA DOES NOT GIVE, AND CUSTOMER DOES NOT RECEIVE ANY REPRESENTATIONS, WARRANTIES, GUARANTEES, OR CONDITIONS, EXPRESS OR IMPLIED, WHETHER ARISING FROM STATUTE, COMMON LAW, EQUITY, OR A COURSE OR CUSTOM OF TRADE, OR OTHERWISE IN RELATION TO THE SERVICES, THE DANIOLA PLATFORM, OR THE DOCUMENTATION, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE WITH ANY DESCRIPTION, OR NONINFRINGEMENT, OR THAT THE SERVICES, INCLUDING THE DANIOLA PLATFORM, AND THE DOCUMENTATION, WILL MEET CUSTOMER’S NEEDS OR WILL BE AVAILABLE FOR USE AT ANY PARTICULAR TIME, OR WILL BE UNINTERUPTED, ACCURATE, TIMELY, OR ERROR FREE, OR WILL ACHIEVE ANY INTENDED RESULT, INCLUDING ANY ANTICIPATED REVENUE OR SAVING, OR BE SECURE, COMPLETE, FREE OF VIRUSES OR HARMFUL CODE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. UNDER NO CIRCUMSTANCES WILL DANIOLA BE LIABLE FOR THE RESULTS OF USE OR MISUSE BY CUSTOMER OR ITS AUTHORIZED USERS OF THE SERVICES, INCLUDING ANY USE CONTRARY TO APPLICABLE LAW OR CONTRARY TO THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE.

LIMITATION OF LIABILITY. IN NO EVENT WILL DANIOLA BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES. WITHOUT LIMITATION, DANIOLA SHALL HAVE NO LIABILITY TO CUSTOMER FOR (A) ECONOMIC LOSS, (B) INCREASED COSTS, (C) DIMINUTION IN VALUE, (D) LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (E) LOSS OF GOODWILL OR REPUTATION, (F) LOSS OF USE OF, OR INABILITY TO USE DATA OR SERVICES, (G) DOWNTIME, (H) INTERRUPTION OF, OR DELAY OF CUSTOMER’S BUSINESS, (I) OR LOSS OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (J) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER DANIOLA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

CAP ON DAMAGES. IN NO EVENT WILL DANIOLA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES OR THESE TERMS OF SERVICE, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO DANIOLA FOR OR IN CONSIDERATION OF THE SERVICES, OR OTHERWISE UNDER THESE TERMS OF SERVICE IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Infringement of Third-Party Rights.  If a Claim for infringement, violation, or misappropriation of the Intellectual Property Rights of a Third-Party Person is brought or threatened as a result of Customer’s use of the Services, Daniola may, at its option and expense, either procure for Customer the right to continue using the Services, or modify the Services so that they become non-infringing without loss of functionality.  If neither of the foregoing alternatives is reasonably available, Daniola may, at its sole discretion, discontinue the Services and/or terminate these Terms of Service, and refund to Customer any pre-paid and unused portion of the Fees paid by Customer in respect of use of the Services. The foregoing states the entire obligations of Daniola with respect to any infringement, violation, or misappropriation of Intellectual Property Rights of any Third-Party Person.

Force Majeure. Except for any obligation to make payments, any delay or failure of either Party to perform its obligations under these Terms of Services shall be excused if, and to the extent, that the delay or failure is caused by an event or occurrence beyond the reasonable control of the Party and without its fault or negligence, such as, by way of example and not by way of limitation, acts of God, action by any Governmental Authority (whether valid or invalid), fires, flood, wind storms, explosions, riots, natural disasters, wars, terrorist acts, sabotage, labour problems (including lock-outs, strikes and slowdowns), or court order or injunction; provided that written notice of delay (including anticipated duration of the delay) shall be given by the affected Party to the other Party promptly upon the affected Party first becoming aware of such event. In the event that the force majeure event lasts for seven days or longer, either Party shall have the option to terminate these Terms of Service upon written notice to the other without liability.