PLEASE CAREFULLY READ THE FOLLOWING TERMS. BY CLICKING ON “I AGREE”, YOU INDICATE THAT YOU AND ANY COMPANY THAT YOU REPRESENT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE PRIVACY POLICY AND HEREBY ENTER INTO A LEGALLY BINDING AGREEMENT WITH ECOMMEARTH LTD. (“Ecomm”). IF YOU DO NOT AGREE WITH THESE TERMS DO NOT CLICK ON “I AGREE” BELOW.
IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY AND YOUR AUTHORIZED USERS, AS APPLICABLE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CHOOSE THE “CANCEL” BUTTON AND YOU SHALL NOT BE PERMITTED TO USE THE SERVICE.
This Agreement, including the subscription form completed by you setting out the price, term, services and payment method while registering for the service (and/or any agreed to update) (the “Subscription Form”), the Terms and Conditions (set out below and incorporated by reference), and the Privacy Policy (collectively, the “Agreement”) is made by and between Ecomm and you, being the person/entity set out in the Subscription Form. THIS AGREEMENT APPLIES TO (1) ALL SUBSCRIPTIONS FOR ECOMM HOSTED SOFTWARE AS A SERVICE (SAAS) SOLUTIONS (INCLUDING BUT NOT LIMITED TO [DG1] AND (2) ANY OTHER RELATED SERVICES THAT ECOMM MAY PROVIDE TO YOU IN CONNECTION WITH SUCH SAAS SOLUTIONS.

TERMS AND CONDITIONS

1.Term and definitions

1.1 Term of Agreement. This Agreement shall remain in full force and effect from the date hereof and shall continue unless and until terminated as provided in Section 5.

(a) “Authorized Users” means any of your employees, consultants, contractors or agents authorized by your administrator to access and use the Service on behalf of your business, in each case subject to such person’s agreement to be bound by the terms of this Agreement.

(b) “Content” has the meaning set out in Section 6.3.

(c) “Data” means registration information, information concerning your Authorized Users and customers and contacts, business, marketing and financial information, and any similar data that you upload to the Service.

(d) “Ecomm Parties” means Ecomm and its officers, directors, agents, subsidiaries, suppliers and employees.

(e) “Materials” means any documentation, user guides or other similar materials provided by Ecomm to you in connection with your use of the Service.

(f) “Personal Information” has the meaning set out in the Privacy Policy.

(g) “Professional Servicesv” means personalized professional services (such as website design or creation of website content) offered by Ecomm to you pursuant to a separate written agreement between you and Ecomm.

(h) “Service” means any of the Ecomm set of SaaS solutions that are developed, operated, and maintained by Ecomm (and its third party service providers) and that are subscribed to through an Ecomm branded or controlled website that includes a link to this Agreement. The definition of Service does not include any separate Professional Services that may be purchased by you from Ecomm.

(i) “Third Party Content” means content, including software, that may be bundled with the Service in certain cases.

2. USE OF THE SERVICE

2.1 License. Subject to you complying with each term of this Agreement, Ecomm hereby grants to you and your Authorized Users a limited, revocable, personal, non-sub-licensable, non-transferable, non-exclusive right to access and use the Service in accordance with this Agreement and not for resale or to provide services to third parties. In your use of the Service, you represent and warrant that you and your Authorized Users will comply with all applicable laws in using the Service, including without limitation, the anti-spam laws in Canada.

2.2 Access and Security Guidelines. Your Authorized Users will use their real name and valid email addresses and create passwords to use in association with their email address for access to and use of the Service. You are solely responsible for ensuring the security and confidentiality of your passwords. You shall not share your passwords with anyone at any time. You will prevent unauthorized access to or use of the Service, and notify Ecomm promptly of any such unauthorized use. You are responsible for the use of the Service or any other person using your passwords. It is your responsibility to ensure that your account passwords are of sufficient strength and are changed regularly to prevent unauthorized access. You shall ensure that your system is secure and uses an up-to-date commercially available anti-virus and security Service. Ecomm has no responsibility whatsoever for any of your systems. You will not use access to the Service to:

(a) harvest, collect, gather or assemble information or data regarding the Service or information or data of other users without their consent;

(b) access, modify or copy any data or information of the Service or other users without their consent;

(c) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; or

(d) harass or interfere with another user’s use and enjoyment of the Service. Ecomm makes no representations that the Service is appropriate, legal or available for use in your jurisdiction. Those who access or use the Service do so at their own volition and risk, and are responsible for compliance with all applicable law (local, domestic and international).

2.3 Data. You are solely responsible for any Data you post to the Service. You will not provide post or transmit any Data, information, content or material that:

(a) infringes, misappropriates or violates any intellectual property rights, publicity/privacy rights or other rights of any third party, or any law or regulation; or

(b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data, security or Personal Information. Ecomm may take any remedial action if you violate this Section 2.3; however, Ecomm is under no obligation to review any Data or Content on the Service for accuracy or potential liability.

2.4 Use Restrictions. You are responsible for all activities that occur under your account. You will not, and will not attempt to, do any of the following:

(a) reverse engineer, disassemble or decompile any component of the Service;

(b) interfere in any manner with the operation of the Service or the hardware and network used to operate the Service;

(c) use the Service for the benefit of a third party or operate a service bureau;

(d) modify, copy or make derivative works based on any part of the Service; (e) otherwise use the Service or access the Service in any manner that exceeds the scope of use permitted under Section 2.1;

(f) use the Service or access the Service in any way that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;

(g) use the Service or access the Service in any way that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, provincial, national or international law;

(h) use the Service or access the Service in any way that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party anywhere in the world;

(i) use the Service or access the Service in any way that discloses personal information about another person, unless permitted by this Agreement, or that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;

(j) use the Service or access the Service in any way for unsolicited promotions, political campaigning, advertising or solicitations;

(k) use the Service or access the Service in any way that introduces or spreads viruses, corrupted data or other harmful, disruptive or destructive files in to the Service or programming routines intended to damage, surreptitiously intercept or expropriate any system, data, security or Personal Information; or

(l) use the Service or access the Service in any way that, in the sole judgment of Ecomm, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Ecomm or its users to any harm or liability of any type, or creates or imposes an inappropriate load or creates large bandwidth-consuming transactions on the Service; or

(m) use the Service or access the Service in a way that causes undue strain or stress on the Ecomm network through excessive API calls or other non-standard use.

2.5 Authorized Users. Your use of the Service (in terms of number of Authorized Users, maximum list sizes, monthly email limitations, etc.) shall conform with the restrictions set forth in the Subscription Form for the level of subscription purchased by you (Ecomm may monitor your compliance with these limits and if it detects overuse require that you upgrade to the appropriate higher subscription level).

2.6 Suspension or Termination of your Use. In addition to any other right or remedy that Ecomm may have under this Agreement or at law, Ecomm may terminate or suspend (partially or completely) your access to the Service in accordance with Section 3.7. You are responsible for any claims, fees, fines, penalties, and other liability incurred by Ecomm or others caused by or arising out of your breach of this Agreement or your use of the Service.

2.7 Content. Ecomm does not represent or guarantee the truthfulness, accuracy, or reliability of and takes no responsibility and assumes no liability for any Content or Data posted, stored or uploaded by you, any user of the Service or any third party on, in or to the Service, or for any loss or damage arising therefrom, nor is Ecomm liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK OF BEING EXPOSED TO SUCH MATERIAL.

2.8 Security Vulnerability. In order to maintain the Service as secure as possible, you must not disclose any security vulnerability to any person except Ecomm. Immediately upon discovering any issue or problem that may be pose a risk to the security or use of the Service or to any user information, including Personal Information, you must notify Ecomm by contacting info@dg1.com.

2.9 Service and Technology. Ecomm exclusively owns and retains all right, title and interest in and to the materials on its website, all formats, designs, interfaces, information, text, data, graphics, images, video, logos, icons, audio, content, computer code, Ecomm’s Confidential Information, and Ecomm proprietary information and technology used by Ecomm or provided to you in connection with the Service and any compilations thereof (the “Technology”). The Service is protected by intellectual property rights under the laws of Canada and other countries, including copyright and trademark laws and are owned by or licensed to Ecomm. “EcommEarth Ltd.” and other Ecomm logos and product and service names are or may be trademarks of Ecomm (the “Ecomm Marks”). Without our prior written permission, and except as solely enabled by any link as provided by us, you agree not to display or use the Ecomm Marks, whether or not registered, in any manner. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Service on any copy you make of the Materials. Other than as expressly licensed to you in this Agreement, no license or other rights in the Service are granted to you, and all such rights are hereby expressly reserved by Ecomm. Ecomm shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by you, relating to the Service.

3. FEES & PAYMENT TERMS

3.1 Fees. The fees for the Service are based on usage (see usage tiers in the Subscription Form) and billing requirements of Ecomm are set out in the Subscription Form and are subject to change, from time-to-time at the sole discretion of Ecomm (“Fees”).

3.2 Recurring Billing. You hereby authorizes Ecomm to charge you a recurring subscription fee (based on your usage tier) on the recurring term and at the then current rates for the Service set out in the Subscription Form, and any other charges you may incur in connection with the use of the Service via the agreed upon method of payment (including, where applicable, your credit card) as set out in the Subscription Form. For certain credit cards, the issuer of your credit card may charge you a foreign transaction fee or other charges. These charges are solely your responsibility.

3.3 Variance. You acknowledge that the amount billed each month may vary from month to month for reasons that may include differing amounts due to promotional offers, changing or adding a Service or being put into a higher or lower tier based on your usage. Your usage tier will not be moved to a lower tier unless all three main attributes of usage (contacts, sales and reservations) have dropped below the maximum amount listed for the previous tier. You authorize Ecomm to amend monthly billing to reflect these changes.

3.4 Price Changes. Ecomm reserves the right to adjust Fees for the Service in any manner and at any time as it may determine in its sole and absolute discretion provided that, any price changes to the Service will take effect for the next billing period described in the Subscription Form. You may, on notice to Ecomm, terminate the Service under Section 5.

3.5 Automatic Billing. Ecomm automatically processes payments and invoices for any monies owed to Ecomm under this agreement via the payment methods outlined in the Subscription Form. For greater clarity, registration of your right to access the Service will commence upon processing by Ecomm of the first payment owed for the first billing period.

3.6 Taxes. You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on Ecomm’s net income) arising from the transactions described in this Agreement, even if such amounts are not listed on a Subscription Form. To the extent you are exempt from sales or other taxes, you agree to provide Ecomm, upon request, with the appropriate exemption certificate.

3.7 Non-Payment; Other Suspension Rights. Ecomm may terminate the Service if the billing or contact information provided by you is false or fraudulent. Ecomm also reserves the right, in its discretion, to suspend your access and/or use of the Service:

(a) where any payment is due but unpaid and you have been requested but failed, within fourteen (14) days, to promptly cure such payment failure; or

(b) in the event a dispute arises on your account as to who at your business has authority to act or manage your account and Ecomm is not promptly provided with written instructions from the interested parties associated with your account that fully resolves the dispute.

Following suspension of the Service under Section 3.7 and failure to become current on your payment obligations, Ecomm will send you a link to export your data in Service. Following thirty (30) days from the date of the notice containing the link, your data will be permanently deleted.

You acknowledge and agree that it a dispute arises as to management of your account, then:

(c) if the listed owner of the account is a corporation, limited liability company or other registered entity, Ecomm may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of your entity; or

(d) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, Ecomm may assume that the person or entity that has been making payments on your account has the authority to manage the account. You agree that Ecomm shall not be liable to you nor to any third party for any suspension of the Service resulting from your non-payment of Fees or from a dispute as to the management rights to your account.

3.8 No Refunds. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. However, following any termination, except for termination for cause under Section 5.3, you will continue to have access to the Service through the end of your current billing period.

4. ECOMM RESPONSIBILITIES

4.1 Access to Information. During the term of this Agreement, Ecomm shall respond in a timely basis to all reasonable requests by you for relevant information in support of you accessing the Service hereunder.

4.2 Access to the Service. To the extent applicable in the performance of any Service, Ecomm shall provide you with the necessary access to use the Service, subject to the terms and conditions of this Agreement and the applicable terms of use. You acknowledge that the Service may be not be available, at times, due to upgrades or maintenance. Ecomm will use commercially reasonable efforts to advise you when the Service will be unavailable for upgrade or maintenance purposes. You hereby acknowledge and agree that the Service is provided from Canada notwithstanding your location. Further, you hereby acknowledge and agree that the Service is dependent on third party systems and, as such, Ecomm does not guarantee availability of or access to the Service.

4.3 Ecomm Security. Ecomm will use commercially reasonable efforts to ensure appropriate safeguards are in place to protect the security of Personal Information and will protect such information against risks such as access, use, disclosure, destruction and alteration. Ecomm will limit access to Personal Information, within Ecomm, to a “need-to-know” basis. In accordance with its Privacy Policy and Applicable Laws. YOU (AND NOT ECOMM) ARE SOLELY RESPONSIBLE TO ENSURE THAT YOU HAVE AND RETAIN BACKUP COPIES (OFF THE SERVICE) OF ALL PERSONAL INFORMATION, DATA AND CONTENT THAT YOU USE WITH THE SERVICE.

4.4 Disclaimer. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ECOMM MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES, CONDITIONS OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ECOMM EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WHICH MIGHT APPLY TO THE SERVICE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, UNINTERRUPTED SERVICE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

5. TERM & TERMINATION

5.1 Standard Term. The initial term of your subscription to the Service will begin on the submission or execution of your Subscription Form and shall continue on a month to month basis until the subscription is terminated as provided for in this Section 5. The term of this Agreement will automatically terminate when all active subscriptions to all Services have been terminated.

5.2 Termination without Cause. Either party may terminate the subscription term to a Service by providing thirty (30) days’ prior written notice to the other party. Ecomm’s termination rights are in addition to any suspension rights it may have under this Agreement. Ecomm may further edit or monitor your Content and Data at any time, at its sole discretion, with or without notice.

5.3 Termination for Cause. This Agreement may be terminated by Ecomm at any time following provision of written notice to you of three (3) business days, if in the opinion of Ecomm, which opinion shall be final and binding, any of the following occurs:

(a) your fraud, dishonesty, breach of a statute or any other law;

(b) any action or activity of yours which may adversely affect Ecomm’s interest or reputation, or otherwise bring Ecomm into disrepute;

(c) conduct on the part of you that is detrimental to the business or the financial position of Ecomm, as determined at the sole discretion of Ecomm;

(d) to the extent used in the Services or otherwise under this Agreement, any failure by you to comply with any of the terms of use for the Service at any time (except with respect to payment delays which shall be governed by Section 3.7); or

(e) any failure to comply with any term or condition of this Agreement or any representation or warranty of you being untrue, incorrect or inaccurate at any time under this Agreement.

5.4 Effect of Termination. Upon termination of the subscription term for the Service, all Fees then due and payable to Ecomm must be paid in full. Contingent upon its receipt of all such Fees, Ecomm will continue to make your Data available for downloading through the termination date. In addition, for a period of thirty (30) days following termination, you may arrange for the downloading of your Data by contacting Ecomm. Following this thirty (30) day grace period, Ecomm may remove your Data from the production environment for the Service. The provisions of this Agreement which by their nature are intended to survive expiration or termination shall survive, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses.

5.5 Ecomm Not Responsible for Third Party Content or services. The Service may be bundled by third parties (including but not limited to Ecomm marketing or service partners) with Third Party Service designed to facilitate use of the Service in certain market niches or to customize the Service for use by certain categories of target customers. To the extent that you either purchase the Service from such third parties or acquire the Third Party Content or configuration services from such third parties (even though you may purchase the core Service directly from Ecomm), Ecomm does not warrant in any manner and will not be responsible for such Third Party Content and you agree to look solely to the relevant third party provider (and not Ecomm) if and to the extent that you have any complaints or issues relating to the Third Party Content or its interaction with an Service.

6. CONFIDENTIALITY; USE OF NAMES

6.1 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Subscription Form, your Data, the Service and the Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees:

(a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party;

(b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder;

(c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and

(d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Ecomm will restrict its employees’ access to your Confidential Information to only those employees necessary to successfully provide the Service. Ecomm may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for Ecomm in connection with the performance of this Agreement. Confidential Information shall not include information that:

(i) is known publicly;

(ii) is generally known in the industry before disclosure;

(iii) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or

(iv) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient.

This Section 6.1 will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.

6.2 Credit Card Information. Ecomm agrees that it will retain and store any provided credit card information only for the minimum amount of time required for business, legal and/or regulatory purposes, and will use standard industry practices to protect such information from unauthorized access, disclosure or use.

6.3 Data and Content. With respect to Data and Content, you represent and warrant that:

(a) you own all rights in Data and to any content uploaded by you, including any designs, images, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials (“Content”), or otherwise have (and will continue to have) the full power, title, licenses, consents and authority, in and to the Content or Data, as necessary to legally use, publish, transfer or license any and all rights and interests in and to such Content or Data;

(b) the Content or Data is (and will continue to be) true, current, accurate, non-infringing upon any third party rights, and in no way unlawful for you to possess, post, transmit or display;

(c) you have obtained all consents and permissions required under all applicable laws, regarding the posting, transmission and publication of any personal information and/or image or likeness of any person, entity or property which is part of the Content or Data, and you will adhere to all laws applicable thereto.

6.4 Use of Names in Marketing. You may use Ecomm’s name or DG1 trademark and credentials in an appropriate and acceptable manner for your standard marketing promotions, provided that you agree to cease or alter such use at Ecomm’s request where such use is contrary to Ecomm’s branding policies, could cause any brand confusion in the market or is otherwise objectionable to Ecomm. Similarly, Ecomm may use your business name in an appropriate and acceptable manner for standard marketing promotions, provided that Ecomm agrees to cease or alter such use at your request where such use is contrary to your branding policies, could cause any brand confusion in the market or is otherwise objectionable to you. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and web site presentation and promotion, etc.

7. INDEMNITY AND REMEDIES

7.1 INDEMNITY. YOU SHALL INDEMNIFY, DEFEND AND SAVE THE ECOMM PARTIES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, DEMANDS, LOSSES, EXPENSES, COSTS OR DAMAGES OF EVERY NATURE AND KIND WHATSOEVER WHICH ECOMM PARTIES OR ITS’ USERS OR CUSTOMERS MAY SUFFER ARISING FROM: (A) YOUR VIOLATION OF ANY TERM OF THIS AGREEMENT; (B) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING ANY COPYRIGHT, PROPERTY, OR PRIVACY RIGHT OR VIOLATION OF ANY APPLICABLE LAW, RESULTING FROM YOUR CONTENT OR DATA AND/OR YOUR USE OF THE SERVICE OR THE PROFESSIONAL SERVICES; AND/OR (C) USE BY YOU OR YOUR AUTHORIZED USERS OF THE SERVICE OR THE PROFESSIONAL SERVICES.

7.2 Injunctions. The parties recognize that a failure by you to comply with any provision of this Agreement will result in damages to Ecomm for which it could not be adequately compensated by monetary award. Accordingly, you agree that in the event of such failure (or threatened failure) and in addition to any other remedies available to Ecomm at law or in equity, Ecomm shall be entitled as a matter of right, to apply to a court of competent equitable jurisdiction for such relief by way of a restraining order, injunction, decree or otherwise, as may be appropriate to ensure compliance with the provisions of this Agreement.

8. WARRANTY; LIMITATION OF ECOMM’S LIABILITY

8.1 Ecomm warrants for a period of thirty (30) days following their delivery that all Professional Services provided will be performed in a workmanlike manner, in conformity with the professional standards for comparable services in the industry. For any breach of this warranty timely reported by you, your exclusive remedy shall be the re-performance of the deficient Professional Services, and if Ecomm is unable to re-perform the deficient Professional Services as warranted, You shall be entitled to recover the portion of the Fees paid to Ecomm for such deficient Professional Services, and such refund shall be Ecomm’s entire liability to you for such Professional Services.

8.2 Limitation of Liability. IN NO EVENT WILL ECOMM BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DELAYS, LOSS OF DATA, LOSS OF CONTENT, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, IN NO EVENT WILL ECOMM’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO ECOMM DURING THE SIX MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT, PROVIDED THAT IF YOU USE THE BETA VERSION OF THE SERVICE, ECOMM’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED TEN DOLLARS ($10.00) FOR ANY DAMAGE CAUSED BY THE BETA VERSION OF THE SERVICE.

8.3 Notwithstanding anything else in this Agreement, in no circumstances may Ecomm be considered as a “publisher” of any Content or Data, does not in any way endorse any Content or Data, and assumes no liability for any Content or Data uploaded, posted, published and/or made available by any user or any other party on and/or through the Service, for any use by any party, or for any loss, deletion or damage thereto or thereof or any loss, damage, cost or expense that you or others may suffer or incur as a result of or in connection with publishing, accessing and/or relying on any Content or Data. Furthermore, Ecomm shall not be liable for any mistakes, defamation, libel, falsehoods, obscenity, pornography, incitement and/or any other unlawful and/or infringing Content or Data you or any other party may encounter.

9. INDEPENDENCE

9.1 Independence. You are independent and not an employee, agent, joint venturer or partner of or with Ecomm. You are solely responsible for the supervision and direction of the Service provided and shall be responsible for the manner in which the Services are performed, for the method employed in doing the same and for all acts and things done in the performance of the foregoing. Nothing contained in this Agreement and the relationship created between the parties hereby shall, directly or indirectly, constitute the employees, contractors and personnel of yours to be an employee, joint venturer, agent or servant of Ecomm and further, nothing herein shall operate or be construed to relieve you of any duties or obligations imposed upon you as an independent contractor.

9.2 Authority. No party shall have any authority to act for the other party or to incur any obligation on behalf of the other party except as specifically provided by this Agreement.

10. GENERAL

10.1 Express Consent. By entering into this Agreement, you expressly consent to receiving electronic messages (emails, text messages, instant messages or any similar form of message) from Ecomm which messages shall provide information related to the Service. If you wish to use the Service on a mobile device, you further expressly consent to the installation of Service (and any updates) required to use the Service as an application on mobile devices. You may contact Ecomm at the address, phone number and email located below in order to cancel your consent to receive electronic messages and/or Service updates at any time.

10.2 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party. You may send notices to 618 - 688 West Hastings Street, Vancouver, British Columbia, V6B 1P1, CANADA, info@ecommearth.com and Ecomm may send any notice to you at the email address as documented in the Subscription Form. Notices will be deemed to have been given upon the next full business day in the Province of British Columbia after being sent.

10.3 Time of the Essence. Time shall be of the essence in the performance of all of your obligations under this Agreement and of every part thereof, and no extension or variation of this Agreement shall operate as a waiver of this provision.

10.4 Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to all of the matters herein and supersedes and replaces any other prior or contemporaneous agreements of any kind. This Agreement may be amended by Ecomm at any time. Use of the Service by you, following any such amendment, will constitute acceptance by you of the amendment. If you do not agree to any modification of this Agreement, you must immediately stop using the Service and notify Ecomm that you are terminating the Agreement. Any schedules referred to herein are incorporated herein by reference and form part of this Agreement.

10.5 Enurement. This Agreement shall enure to the benefit of and be binding upon the parties and their respective legal or personal representatives, heirs, executors, administrators, successors or permitted assignees.

10.6 Assignment or Subcontract. This Agreement may not be assigned or subcontracted (in whole or in part) by you, and any assignment or subcontract is void ab initio.

10.7 Force Majeure. Ecomm shall not be liable for any delays or failure in performance due to causes beyond its reasonable control, including but not limited to, acts of God, acts of any government, war, natural disasters, strikes, civil disturbance, work refusal, fires, equipment failure or the Service or systems of a third party. If such a delay occurs, performance obligations shall be deemed extended for a period equal to the delay.

10.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein and each of the parties hereto agrees irrevocably to attorn to the exclusive jurisdiction of the Courts of such Province except for applications for injunctive relief or specific performance by Ecomm.

10.9 Severability & Waiver. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The failure of Ecomm to insist upon or enforce strict performance of any provision of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of Ecomm’s right to assert or rely upon any such provisions.

10.10 Export Compliance. You agree that Canadian and U.S. export control laws and other applicable export and import laws govern your use of the Service, including Ecomm Technology. You represent that you are neither a citizen of an embargoed country nor prohibited end user under applicable Canadian and U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the Service or Technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.