Terms of Service

Cuemill Corporation (“Cuemill”, “us”,“we”, “our”) owns and operates the website located at https://cuemill.com/ (“Website”), the Loop web application (“Web Platform”), the Loop mobile app (“App”) and provides the services described on the Website and on the Platform and App (collectively with the Website, Web Platform, and App, the“Platform”). We also provide Loop activation devices, which are proximity hardware devices that serve as activation points, as well other hardware devices as further described on the Website (“Hardware”). These Terms of Service (“Terms”) apply to all users of the Platform whether or not they register an account with Cuemill (“User”, “Guest”, “Customer”, “Business User”, “Business Customer", “Institutional User”, “Institutional Customer”, “you”, “your”).

By using the Platform, you indicate that you have read and accepted these Terms, which constitute a binding legal agreement between you and Cuemill. If you do not accept these Terms, then do not use the Platform. If you are accepting these Terms on behalf of a corporation or other entity, you represent and warrant that: (i) the individual accepting these Terms are duly authorized to accept the Terms on such entity's behalf and to bind such entity; and (ii) such entity has full power, corporate or otherwise, to enter into these Terms and perform its obligations hereunder.

Please note that some aspects of the Platform may require purchase of Hardware or may be subject to additional terms between you and Cuemill, including but not limited to a Services Agreement (defined below).The collection, use and disclosure of your personal information will be governed by the Cuemill Privacy Policy, the latest version of which can be found at https://cuemill.com/privacy-policy (“Privacy Policy”).

These Terms may be amended or updated by Cuemill from time to time at Cuemill’s sole discretion. If we make changes to these Terms, we will post the updated Terms at https://cuemill.com/terms-of-service, set the “Last Updated” date at the top of the page appropriately, post a notice on the Website, Web Platform or App, and/or send you an email (as appropriate). Any revisions to these Terms shall become effective thirty (30) days following the date of the notice and your acceptance of the revised Terms or decision to continue using the Platform thereafter (as applicable) shall constitute your acceptance of the revised Terms. Cuemill may require you to provide consent to the updated Terms in a specified manner before continuing to use the Platform. If you do not agree to any such change(s), you shall stop using the Platform. Otherwise, your continued use of the Platform constitutes your acceptance of such change(s).

1.     About the Platform. Cuemill is a product and service provider that uses proximity and location technologies to create new or streamline existing interactions between individuals and between individuals and other entities, such as businesses and organizations. We also create Loop activation devices, which are proximity hardware devices that serve as activation points as well as other hardware devices as further described on the Website (“Hardware”), and provide Users a portal for managing Hardware as well as various User preferences and permissions.

The Platform may be accessed and used for free. Cuemill reserves the right to institute fees for accessing or using certain features of the Platform. Furthermore, the following apply to certain types of Users:

a.    Institutional Users. Users may be members or employees of an organization or institution that has entered into a Services Agreement (defined below) with Cuemill (“Institution” and any such Users, “Institutional Users”). If you are an Institutional User, your use of the Platform may be subject to additional terms between you and your Institution.

b. Business Customers. Users wishing to use Hardware and/or Cuemill’s enterprise solutions may be required to enter into a separate agreement with Cuemill, which will detail fees, scope of engagement, terms applicable to Hardware, obligations, and other commercial terms (“Services Agreement”).

2.     Registration and Access

a.     Account. Users may register an account (“Account”) in order to use certain features of the Platform. In some cases, Institutional and Business Users may be provided with an Account by Cuemill. Note that Users can interact with Hardware and use some features of the App as Guests without registering an Account. You agree to (a) provide accurate, current, and complete information as may be prompted by any Account registration forms (“Registration Data”); (b) maintain the security of your Account credentials; and (c) promptly update the Registration Data as necessary to ensure it is up to date. If you think the security of your Account or Registration Data has been compromised, please contact us immediately or your Institution (as applicable). In the event of a dispute regarding the Account owner, we reserve the right to request documentation to determine Account ownership, including but not limited to a government-issued ID. If we are unable to reasonably determine the rightful Account owner, we reserve the right to disable that Account until resolution has been determined.

b.    App Store Terms. You may access the App on a mobile device by downloading it via a third-party application marketplace (each such marketplace, an “App Store”). You agree that you will only use the App: (i) on the branded device of the applicable App Store, if required by the App Store’s terms and conditions; and (ii) as permitted by any usage rules set forth in the applicable App Store’s terms of service. You acknowledge that these Terms are concluded between Cuemill and you only, and App Store has no obligation or liability to you with respect to the App or these Terms. You acknowledge and agree that App Store is a third-party beneficiary to these Terms as it relates to the App Store’s provision of the App to you.

c.     Mobile Device Terms. When you download or access the App on a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply.

3.     Trial.

a.     General. Some or all of the Platform may be made available to Users on a free trial basis (“Trial”). If you register for a Trial, the applicable part of the Platform (“Trial Service”) will be made available to you on a trial basis until the earlier of: (a) the end of the Trial period for the applicable Trial Service; (b) your purchase of the applicable Trial Service; or (c) termination by Cuemill in its sole discretion. Additional Trial terms and conditions may be applicable to the Trial Service and any such additional terms and conditions will be made available to you at the time of registration and will be incorporated into these Terms by reference. Any outputs or customizations made by you during the Trial may be permanently lost unless you purchase a subscription to the same services as those covered by the Trial or export such data before the end of the Trial period.

b.    Indemnity; Limitation of Liability. The Trial Services are provided “as-is” without any warranty and Cuemill shall have no indemnification obligations nor liability of any type to you with respect to any damages arising out of your use of the Trial Service. Without limiting the foregoing, Cuemill and its affiliates and licensors do not represent or warrant that: (i) your use of the Trial Service during the Trial period will meet your requirements; or (ii) your use of the Trial Service will be uninterrupted, timely, secure, or free from error. You shall be fully liable to Cuemill for any damages to Cuemill arising out of your use of the Trial Service, including without limitation, any breach of these Terms during the Trial. In the event of a conflict between this Section 3 and any other portion of the Terms, this Section 3 shall control.

4.     Intellectual Property Rights.

a.     User License. Subject to your compliance with these Terms, Cuemill grants you a non-transferable, non-exclusive, limited license to (i) access and use the Platform; and (ii) download, install and use the App on a mobile device that you own or control for your personal use.

b.    Reservation of Rights. The Platform, including without limitation (i) any software or code embedded in or located on the Website, Web Platform, App, or Hardware; and (ii) the information and materials made available to you via the Platform and Hardware are the property of Cuemill and its licensors and are protected from unauthorized copying and dissemination by copyright law, trademark law, patent law, and other intellectual property laws. You acknowledge and agree that you have no right, license, or authorization with respect to any of the technology underlying the Platform and Hardware except as expressly set forth in these Terms. The Platform is licensed to you and not sold. Nothing in these Terms gives you a right to use the Cuemill names, trademarks, logos, designs, domain names, and other distinctive brand features without Cuemill’s prior written consent.

c.     User Content License. You retain your intellectual ownership rights over content you submit to us for publication through the Platform. By sharing any information via the Platform (including personal information) or posting or displaying any comments or content (collectively, “User Content”) on or through the Platform, you grant Cuemill (and our affiliated companies and our and their agents) a non-exclusive, royalty-free paid-up, perpetual, irrevocable, transferable, worldwide license (with the right to sublicense) to use, copy, modify, transmit, display, distribute  and otherwise exploit such User Content (i) to the extent necessary to provide the Platform and meet our obligations to you; (ii) to create aggregated and anonymized statistics and insights; and (iii) to improve the Platform and other Cuemill Offerings (defined below) in a manner that is consistent with your privacy preferences and our Privacy Policy.

d.    User Content Restrictions. You represent and warrant that you have all the rights, power, and authority necessary to grant the rights granted on these Terms to any User Content that you submit via the Platform. You are solely responsible for (i) obtaining all necessary licenses, permissions, and consents to ensure User Content can be shared with Cuemill as contemplated herein; (ii) the accuracy, quality, integrity, legality, reliability, and appropriateness of User Content; and (iii) the consequences of submitting, posting, or publishing User Content via the Platform. We reserve the right to edit, modify or remove any User Content or refuse to host or distribute any User Content which we reasonably consider to be in breach applicable laws or our policies.

e.     Feedback. If you provide Cuemill with any suggestions, comments or other feedback relating to any aspect of the Platform or Hardware ("Feedback"), Cuemill may use and incorporate such Feedback in the Platform, Hardware or in any other Cuemill products or services (collectively, "Cuemill Offerings"). Accordingly, you agree that: (a) Cuemill is not subject to any confidentiality obligations in respect to the Feedback; (b) the Feedback is not Confidential Information of you or any third party and you have all of the necessary rights to disclose the Feedback to Cuemill; (c) Cuemill (including all of its successors and assigns and any successors and assigns of any of the Cuemill Offerings) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any Cuemill Offerings; and (d) you are not entitled to receive any compensation or re-imbursement of any kind from Cuemill or any of the other Users in respect of the Feedback.

f.      Usage Data. We may collect and process certain statistical and technical information that is generated when you use the Platform or Hardware (“UsageData”). You grant Cuemill (and our affiliated companies and our and their agents) a non-exclusive, royalty-free paid-up, perpetual, irrevocable, transferable, worldwide license (with the right to sublicense) to use, copy, modify, transmit, display, distribute and otherwise exploit such Usage Data (i) to create aggregate statistics; (ii) analyze market trends; (iii) develop or improve the Platform or other Cuemill Offerings; and (iv) for benchmarking purposes.

5.    Personas. We allow Users to create personas through their Account settings (section: “Profile and Personas”) and to use Personas to interact with other Users via the Platform. Use of the Persona feature may be subject to additional terms between you and Cuemill. We reserve the right to restrict or terminate an Account’s access to the Persona feature or to discontinue the Persona feature of the Platform at any time and at Cuemill’s sole discretion. You acknowledge and agree that Cuemill shall not be responsible for your reliance on Personas or interactions with another User using the Persona feature.

6.    Hardware. Ordering, receipt, use, maintenance, and warranties applicable to Hardware (as applicable) may be subject to additional terms and/or a Services Agreement (“Hardware Terms”),which will be made available to you at the time of Hardware order. You shall be entitled to the use, operation, possession, and control of Hardware, provided you are not in default of Hardware Terms or any provision of these Terms. You shall assume all obligation and liability with respect to the possession of Hardware, and for its use and operation in a safe and appropriate environment in accordance with Hardware Terms and these Terms. You are solely responsible for ensuring all individuals permitted to use Hardware are properly trained and educated on the use of Hardware. Neither Cuemill nor its affiliates or representatives accept any responsibility or liability in any way for any inappropriate, incorrect, or improper use of the Hardware (by your or your authorized users) or any resulting harm therefrom. You shall notify Cuemill if you have issues using the Hardware or if the Hardware breaks down or is no longer functional. Cuemill shall use commercially reasonable efforts to restore Hardware functionality or send you Hardware replacement at a time and cost mutually agreed upon by you and Cuemill. Cuemill shall not be responsible for interruptions to your use of the Platform while Cuemill repairs or replaces Hardware.

7.      Hardware Warranty. Cuemill warrants to the original purchaser that the Hardware will, under normal use conditions, be free of defects in material and workmanship for a period of 1 years from the date of shipment of such product from Cuemill. The Hardware warranty for Business Users is 2 years.  

8.      Customer-Provided Equipment. Certain components, including equipment and software, not provided by Cuemill may be required for use of the Platform (“Customer-Provided Equipment”). You will be responsible, at your sole cost and expense, for providing and maintaining the Customer-Provided Equipment in good working order. You represent and warrant that you have all rights in Customer-Provided Equipment to provide the Platform under this Agreement, and such access and use will not violate any laws or infringe any third-party rights (including intellectual property rights). You (and not Cuemill) will be fully liable for Customer-Provided Equipment, and you will immediately notify Cuemill of any Customer-Provided Equipment damage, loss, change, or theft that may impact Cuemill’s ability to provide the Platform under this Agreement.

9.     Restrictions on Use of the Platform.

a.    Our Rights. Cuemill reserves the right, at all times and at its sole discretion (but will have no obligation), to terminate or reclaim Accounts, or to limit an Account’s access to some or all aspects of the Platform. We also reserve the right to access, read, preserve, and disclose any information available to us via the Platform that we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of our Users and the public.

b.   User Restrictions. In using the Platform and/or Hardware, you shall not: (i) copy any information or materials or User Content that is intended to be private (including, without limitation, per the settings of a given App community unless expressly permitted to do so herein; (ii) upload, transmit or otherwise make available any materials or User Content that: (I) are unlawful or invasive of another's privacy; (II) you do not have a right to make available under any law or under a contractual relationship; (III) contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Platform and/or Hardware, any computer software or hardware, telecommunications equipment, or that compromise anyone’s privacy; (IV) contain any falsehoods or misrepresentations or creates an impression that you know is incorrect, misleading, or deceptive, or (V) could damage or harm minors in any way; (v) except as expressly permitted by these Terms, impersonate any person or entity (including, without limitation, through the use of Personas) with the intent to deceive others, misrepresent your affiliation with a person or entity, or misrepresent yourself by using the image or likeness of another person; (vi) interfere with or disrupt the Platform and/or Hardware or servers or networks connected to the Platform and/or Hardware, disobey any requirements, procedures, policies or regulations of networks connected to the Platform, probe, scan, or test the vulnerability of any system or network, or breach or circumvent any security or authentication measures; (vii) intentionally or unintentionally violate any applicable local, state, provincial, national or international law or regulation; (viii) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Platform and/or Hardware; (ix) modify, translate, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Platform and any Hardware or software provided as part of the Platform, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (x) create more than one Account to circumvent the restrictions set out herein; and (xi) access the Platform in a manner that utilizes the Platform’s resources more heavily than would be the case for an individual person using the Platform on a conventional device.

c.    Competitors. No employee, independent contractor, agent, affiliate, or representative of any business or organization that develops or offers products, solutions or services that compete with Cuemill is permitted to view, access, or use any portion of the Platform and/or Hardware without express written permission from Cuemill. By viewing, using, or accessing the Platform and/or Hardware, you represent and warrant that you are not a competitor of Cuemill or any of its affiliates, or acting on behalf of a competitor of Cuemill in using or accessing the Platform and/or Hardware.

10.     Third-Party Services. The Platform may integrate with or contain links to other websites, platforms or services that are not owned or controlled by Cuemill (“Third-Party Services”). In no event shall any reference to any third-party or Third-Party Services be construed as an approval or endorsement by Cuemill of that third-party or Third-Party Services. Cuemill is not responsible for the content of any Third-Party Services or any material available thereon. Any Third-Party Services are subject to the terms and conditions of those Third-Party Services, and you are solely responsible for determining those terms and conditions and complying with them. You hereby release Cuemill from all liability and damages that may arise from your use of Third-Party Services, receipt of services from any such third parties, or reliance on the information available or services provided by any such third parties.

11.     Availability. Cuemill may alter, suspend, or discontinue use or access to the Platform or any parts thereof at any time, at its sole discretion, and for any reason or no reason, without notice, but will endeavor to provide notice of the same. The Platform may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. Cuemill may periodically add or update information and materials available via the Platform without notice. Cuemill will make commercially reasonable efforts to make the Platform available 99.99% or more of the time during any calendar month (the “Service Level Objective”). Subject to the exclusions herein, an “Outage” is defined as any time when the Platform is not available to Users due to a cause within the control of Cuemill. An Outage does not include any time that the Platform is unavailable due to: (a) planned maintenance periods where notice of planned unavailability has been given via the Platform, the Website, or via email at least forty-eight (48) hours prior to the Outage, unless in the case of emergency changes; (b) Force Majeure events as described in Section 23; (c) actions or inactions on the your part (d) events arising from Customer’s systems or any of your websites; (e) ISP or internet outages outside of Cuemill’s control; (f) any other event or occurrence outside of the direct control of Cuemill. “Service Availability” shall be calculated by subtracting the number of Outage minutes in a month from the total number of minutes in a month, dividing that difference by the total number of minutes in a month, and multiplying this result by 100, resulting in a percentage. In the event of an Outage, your sole remedy shall be a service credit on their next bill corresponding to the Service Availability as follows: < 99.99% - 99.9% (3 days); < 99.9% - 99% (5 days); < 99% - 90% (10 days); < 90% (15 days).

12. Payment.

a.      Fees. To use the Platform, you must pay the applicable Subscription fee (“Subscription Fees”), which will vary depending on the services selected. Certain functionalities or services, including the purchase of Hardware, may require the payment of one-time fees (“One-Time Fees” and together with Subscription Fees, “Fees”). One Time Fees will be specified and billed at the time of purchase. You are required to provide us with a current, valid, accepted method of payment at the time of Account registration, as may be updated from time to time (“Payment Method”). You must maintain accurate payment information and notify us of any changes to billing information. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method, and you are solely responsible for any such fees.  

b.      Billing. Subscription Fees may be processed monthly by you or may be automatically processed by a Third-Party Service, and in any case, are billed monthly. Unless you terminate the Subscription before the next billing date, you authorize us to charge the applicable Payment Method for the Subscription Fees on the first day of each Subscription billing cycle. If the Payment Method expires, is invalid, is otherwise not able to be charged for Subscription Fees for any reason, or if you do not process payment for any reason, your Subscription may not be continued or renewed (as applicable) and in addition to any of its other rights or remedies, Cuemill reserves the right to suspend access to the Platform, without liability to Customer, until all outstanding Subscription Fees are paid in full.

13. Confidential Information.

a.    Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a party (the“Disclosing Party”) disclosed to the other party (the “Receiving Party”) in connection with the Platform, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to business and marketing plans, know-how, technology, technical and financial information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

b. Confidentiality; Protection. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party's prior written permission. The Receiving Party agrees to protect the Confidential Information of Disclosing Party in the same manner that it protects its own Confidential Information (but in no event using less than reasonable care).

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

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

14. DISCLAIMERS.

a.    GENERAL. THE PLATFORM (INCLUDING ANY INFORMATION OR MATERIALS PROVIDED THEREON) AND HARDWARE (EXCEPT AS EXPRESSLY SET OUT IN HARDWARE TERMS) ARE PROVIDED “AS IS” AND CUEMILL DOES NOT WARRANT THAT THE PLATFORM OR HARDWARE WILL MEET YOUR SPECIFIC REQUIREMENTS, THAT THE PLATFORM OR HARDWARE WILL BE UNINTERRUPRED, SECURE OR ERROR-FREE, THAT RESULTS OBTAINED FROM THE PLATFORM WILL BE ACCURATE OR RELIABLE OR THAT ANY ERRORS IN THE PLATFORM WILL BE CORRECTED. CUEMILL SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANT ABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY INFORMATION OR MATERIALS ACCESSED, USED, RELIED ON OR OTHERWISE OBTAINED THROUGH THE PLATFORM OR HARDWARE IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES OR LOSSES THAT RESULT FROM ACCESSING, USING, RELYING ON OR OTHERWISE OBTAINING ANY SUCH INFORMATION OR MATERIALS.

b. THIRD-PARTY SERVICES. CUEMILL DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY THIRD-PARTY SERVICES AND CUEMILL SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER     INTO WITH ANY THIRD PARTY IN CONNECTION WITH SUCH THIRD-PARTY SERVICE.

15.  LIMITATION OF LIABILITY. WE, OUR OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT (INCLUDING BUT LIMITED TO FUNDAMENTAL BREACH), TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND PERSONAL INJURY), OR OTHERWISE, RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM: (I) YOUR USE OF, YOUR INABILITY TO USE, OR YOUR RELIANCE ON THE PLATFORM OR HARDWARE; (II) ERRORS, MISTAKES, OMISSIONS OR INACCURACIES IN OR ON THE PLATFORM OR HARDWARE; (III) YOUR USE OF OR RELIANCE ON PERSONAS OR ANY THIRD-PARTY SERVICES; (IV) THE ACTS, OMISSIONS, OR CONDUCT OF ANY THIRD-PARTY; (V) THE COST OF PROCURING SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES; AND (VI) ANY OTHER LOSSES OR DAMAGES OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE PLATFORM OR HARDWARE OR RELIANCE THEREON. THESE LIMITATIONS SHALL APPLY EVEN IF CUEMILL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CUEMILL’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE GREATER OF (I) FIFTY CANADIAN DOLLARS ($50); OR (II) AMOUNTS YOU PAID TO CUEMILL IN THE 12 MONTHS PRECEEDING THE EVENT GIVING RISE TO LIABILITY HERE UNDER. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

16. INDEMNIFICATION.  

a.    INDEMNIFICATION REQUIREMENTS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, YOU SHALL INDEMNIFY AND HOLD CUEMILL AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUCCESSORS AND ASSIGNS (“INDEMNIFIED PARTIES”) HARMLESS FROM ALL CLAIMS, ACTIONS, PROCEEDINGS, DEMANDS, DAMAGES, LOSSES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), RESULTING DIRECTLY OR INDIRECTLY FROM (I) ANY ALLEGATION THAT THE PLATFORM (INCLUDING WITHOUT LIMITATION, THE PERSONA FEATURE OR YOUR USE THEREOF) OR HARDWARE INFRINGE UPON OR MISAPPROPRIATE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; (II) ANY INFORMATION OR MATERIALS (INCLUDING USER CONTENT) SUBMITTED BY YOU THROUGH THE PLATFORM; (III) ANY BODILY INJURY (INCLUDING DEATH) RESULTING FROM USE OR RELIANCE ON THE PLATFORM OR HARDWARE; (IV) ANY DAMAGE TO OR LOSS OF ANY TANGIBLE PERSONAL OR REAL PROPERTY CAUSED BY THE ACTIONS OR OMISSIONS OF INDEMNIFIED PARTIES; (V) YOUR BREACH OF THESE TERMS; OR (VI) YOUR VIOLATION OF ANY APPLICABLE LAW OR REGULATION OR THE RIGHTS OF A THIRD PARTY (INCLUDING WITHOUT LIMITATION, VIA USE OF A PERSONA). FOR THE PURPOSES OF THIS SECTION 13(A), YOU ACKNOWLEDGE THAT CUEMILL IS ACTING AS AGENT AND TRUSTEE FOR INDEMNIFIED PARTIES.

b. Indemnification Conditions. Cuemill will provide notice to you of any claim, suit, or proceeding requiring indemnification in accordance with Section 13(a). Cuemill reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under Section 13, and you agree to cooperate with any reasonable requests assisting Cuemill’s defense of such matter.     This Section 13(b) does not require you to indemnify Cuemill for any unconscionable commercial practice by Cuemill or for Cuemill’s gross negligence, fraud, deception, false promise, misrepresentation or concealment, suppression, or omission of any material fact in connection with the Platform.

17. Termination.

a.    Termination by Cuemill. Cuemill may, under certain circumstances and without prior notice, immediately terminate your ability to access the Platform or Hardware or portions thereof. Cause for termination shall include, but not be limited to: (i) breaches or violations of these Terms which have not been cured within thirty (30) days of notice to you by us; (ii) requests by law enforcement or other government agencies; (iii) a request by you; (iv) discontinuance or material modification to Platform or Hardware (or any part thereof); (v) unexpected technical, security or legal issues or problems; or (vi) or any reason at our sole discretion. Any termination of your access to the Platform or Hardware by Cuemill shall be in addition to any other rights and remedies that Cuemill may have.

b. Effect of Termination. Your rights to use and access the Platform or Hardware, including all licenses granted by Cuemill to you herein, will immediately terminate upon termination of your access to the Platform or Hardware (as applicable) and may result in removal of some or all of your User Content. Sections 2, 3, 4(b)-(f), 5-13, 14(b), and 15-17 of these Terms shall survive termination.     Termination shall not release you from obligations under Hardware Terms or a Services Agreement (as applicable) and payment of any unpaid fees (if any) owed to Cuemill incurred on and up to the date of termination.

18.  Security. Cuemill employs state of the art security technologies in the provision of its Platform. Despite this, Cuemill cannot and does not make any representation or warranty regarding the interception by third parties of information (including User Content) you may submit to us via the Platform.  

19.  Jurisdiction; Dispute Resolution.

a.    Jurisdiction. Any dispute or claim arising out of or in connection with Platform or Hardware will be governed and interpreted by and under the laws of Ontario, Canada without giving effect to any conflict of laws principles. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Toronto, Ontario with respect to any dispute or claim arising out of or in connection with these Terms. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and is hereby expressly excluded.

b.   Dispute Resolution. You and Cuemill shall use all reasonable endeavors to discuss and resolve any dispute which may arise out of or in connection with these Terms. If you and Cuemill cannot resolve the dispute within ten (10) business days, you and Cuemill will attempt to settle it in good faith by mediation. To initiate mediation, either Cuemill or you must give written notice requesting a mediation to the other party. A copy of the request should be sent to ADR Chambers. The mediation will take place in Toronto, Ontario and the language of the mediation will be English. The mediation shall be governed by and construed and take effect in accordance with the substantive law of Ontario, Canada. If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as you and Cuemill may agree to in writing, the dispute shall be referred to and finally resolved by binding arbitration at ADR Chambers. The arbitration shall be governed by the applicable rules of the Arbitration Act (Ontario), and arbitration proceedings shall take place in Toronto, Ontario before one (1) arbitrator. In the event you and Cuemill are unable to agree as to the appointment of an arbitrator for any reason, then such arbitrator shall be selected randomly by ADR Chambers. You shall bear your own legal costs in connection with a mediation and/or arbitration under these Terms. Cuemill acknowledges and agrees that if you are an individual consumer in Quebec using the Platform you may commence proceedings to resolve a dispute in a court of competent jurisdiction in the Province of Quebec.

c.    Time Limitation. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. This time limitation shall not apply if you are an individual consumer in the Province of Quebec using the Platform, and any time limitation shall be prescribed by applicable Quebec law.

20.  General. These Terms, together with any Services Agreement and Hardware Terms and any other documents and guidelines incorporating these Terms by reference, constitute the entire agreement between you and Cuemill relating to the Platform. In the case of any inconsistent or conflicting terms between the Terms, Services Agreement, or Hardware Terms, the conflict or inconsistency will be resolved in the following order: Services Agreement, Hardware Terms, Terms. If any part of these Terms is held to be unlawful, void, or unenforceable, that part shall be deemed severed and shall not affect the validity and enforceability of there maining provisions. The failure of Cuemill to exercise or enforce any right or provision under these Terms shall not constitute a waiver of such right or provision. Any waiver of any right or provision by Cuemill must be in writing and shall only apply to the specific instance identified in such writing. You may not assign the Terms, or any rights or licenses granted hereunder, whether voluntarily, by operation of law, or otherwise, without Cuemill’s prior written consent. Cuemill may assign these Terms without your consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Cuemill’s business, shares or assets.

21. Language. The parties acknowledge having expressly required that these Terms and the Privacy Policy are to be drawn up in the English language, and if you are in Quebec, you acknowledge and agree you have the opportunity to view the French version of the documents before viewing the English versions. Les parties aux présentes reconnaissent avoir expressément exigé que les présentes Conditions d’utilisation et la Politique de confidentialité soient rédigées en anglais, etsi vous êtes résident de la province de Québec que vous avez eu l’occasion delire les versions françaises des documents en premier.

22. Authorization to Install Hardware. You represent and warrant that (i) you own any property where Hardware will be installed; or (ii) you are a tenant at any property where Hardware will be installed and have obtained all necessary consents, permissions, and/or authorizations from property owners, managers, and/or any other relevant parties to install Hardware in leased spaces or common/shared spaces where Hardware will be installed. You agree to comply with all applicable laws and regulations regarding the placement and installation of Hardware. You are solely responsible for compliance with all applicable laws and regulations, and obtaining all consents, permissions, and authorizations for the installation of Hardware. Cuemill shall in no event be held responsible or liable for any unlawful or unauthorized installation of Hardware.

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

24. Export Restrictions. The Platform and Hardware and related information are subject to export and import restrictions. By downloading, installing, or using the Platform and Hardware, you represent and warrant that you are not located in, under the control of, nor is a national or resident of, any country to which the export of the Platform and Hardware or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. You also represent and warrant that you are not an individual to whom the export of the Platform and Hardware or related information would be prohibited by the laws and/or regulations of the United States or Canada. You shall comply with the export laws and regulations of the United States and Canada that are applicable to the Platform and Hardware and related information and you shall comply with any local laws in your jurisdiction that may impact your right to export, import, or use the Platform and Hardware or related information, and you represent and warrant that you have complied with any such applicable laws or regulations. The Platform and Hardware shall not be used for any purposes prohibited by export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Platform and Hardware or related information.