SHOPFLOOR SOLUTIONS INC. - TERMS OF SERVICE

We, Shopfloor Solutions Inc. (“Shopfloor”, “our”, “we” or “us”), own and operate a web-based operational KPI diagnostic platform for trade businesses that analyzes submitted business data to benchmark performance, identify operational issues, and generate reports, insights, and recommendations (“Solution”), as described on our website, www.shopfloorsolutions.ca and its subdomains (“Website”). These Terms of Service (“Terms”) are between Shopfloor and the individual or entity using the Solution (“User”, “you”, “your”). The Solution is available to users by way of free assessment and those who purchase a subscription to the various Solutions (“Customer”), authorized users from Customer’s enterprise (“Authorized Users”). The terms “User”, “you” and “your” apply collectively to Customers and Authorized Users.

Please note that certain features of the Solution or our other products or solutions may be subject to additional terms, which will be made available at the time of access, subscription, or purchase (“Additional Terms”).

By taking action to indicate acceptance (such as clicking a checkbox) or by paying for or using the Solution, you acknowledge having read, understood, and accepted these Terms, which constitute a binding legal agreement between you and Shopfloor. These Terms shall be effective as of the date of your acceptance of these Terms. If you are accepting these Terms on behalf of a corporation or other entity, you represent and warrant that the individual accepting these Terms is duly authorized to accept the Terms on such entity's behalf and to bind such entity and that such entity has full power, corporate or otherwise, to enter into these Terms and perform its obligations hereunder.

We reserve the right, at our sole discretion, to modify, amend, or update these Terms at any time. Such changes will be effective immediately upon posting within the Solution or Website, and continued use of the Solution following any changes constitutes acceptance of those changes.

1. General.

   1. Access. Subject to compliance with these Terms, Users shall be permitted to access and use the Solution for internal business purposes and for the following duration: (i) in the case Customer, the term of Customer’s subscription to the Solution (“Subscription”), or (ii) in the case of Authorized Users, solely during the Customer’s active Subscription and as authorized by the Customer. Access to and use of the Solution is subject to the tier selected at the time of registration.

   2. Modification. Shopfloor may, at its sole discretion, update the Solution with new capabilities or offerings or replace and/or discontinue any Solution functionality, provided that Shopfloor will not materially decrease the overall security or functionality of the Solution. Shopfloor will inform you of any material changes or upgrades to the Solution by sending an email notification or posting on the Solution or Website.

   3. Privacy. Our collection, use and disclosure of personally identifiable information (“Personal Information”) will be governed by our Privacy Notice located at https://www.shopfloorsolutions.ca/privacy (“Privacy Notice”). By using the Solution and/or Website, you consent to our collection, use, and disclosure of Personal Information as outlined in the Privacy Notice.

   4. Availability. Shopfloor will use commercially reasonable efforts to make the Solution available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which Shopfloor shall make reasonable best efforts to give prior electronic notice); or (b) any unavailability caused by circumstances beyond Shopfloor's reasonable control, including without limitation, circumstances described in Section 12.7 hereto. Shopfloor will provide the Solution in accordance with laws and government regulations applicable to the provision of the Service to Users generally (i.e., without regard for any particular use of the Solution), and subject to use of the Solution in accordance with these Terms.

   5. Use Guidelines. You shall not (and shall not permit any third party to): (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Solution available to any third party; (ii) use the Solution to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Solution to send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Solution or the data contained therein; (v) attempt to gain unauthorized access to the Solution or its related systems or networks; (vi) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Solution, except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (vii) circumvent any User limits or other timing or use restrictions that are built into the Solution; (viii) remove any proprietary notices, labels, marks, or other intellectual property from the Solution; (ix) access the Solution in order to (a) build a competitive product or service or (b) copy any ideas, features, functions or graphics of the Solution.

2. Registration and Onboarding.

   1. Eligibility. By using the Solution and accepting these Terms, you represent and warrant that you are at least eighteen (18) years of age, and that you have not previously been suspended or removed from the Solution.

   2. Customer Registration. If you are a Customer, you must register an account for the Solution (“Account”) through the Website to use the Solution. You agree to provide accurate, current, and complete Account registration information requested by any Account registration forms (“Registration Data”). You are responsible for maintaining the confidentiality of your Account credentials and for all activities that occur under your Account. Accounts cannot be shared or used by more than one User. You shall be responsible for any use or misuse of the Solution performed through your Account (including by any third party). If you suspect the security of your Account has been compromised, please contact us immediately. In the event of a dispute regarding the rightful Account owner, we reserve the right to request documentation to determine Account ownership. If we are unable to reasonably determine the rightful Account owner, Shopfloor reserves the right to temporarily disable an Account until a resolution has been determined.

   3. Authorized User Registration. Once Customer has registered an Account, Customer may invite Authorized Users to access and use the Solution in connection with Customer’s Subscription. Each Authorized User will either sign in using an existing ShopFloor account or create their own individual ShopFloor account, which will be linked to the Customer’s Subscription and subject to the access permissions assigned by the Customer. Authorized Users shall not share the Customer’s login credentials. Customer may assign each Authorized User one of the following access roles: (i) Admin (full account access); (ii) Member (standard operational access); or (iii) Viewer (read-only access), as made available within the Solution. Customer shall be bound by any changes made to their Account by Authorized Users acting within their assigned permissions, including but not limited to changes to the Subscription plan. The Customer is responsible for ensuring its Authorized Users enter into and comply with these Terms. The Customer will be directly responsible for any breaches of these Terms by its Authorized Users.

   4. Audit Rights. We shall have the right to use the capabilities of the Solution to confirm compliance with these Terms. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request, (ii) enforce these, 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.

3. Trials. In the event of a conflict between Section 3 and any other portion of these Terms, Section 3 shall control.

   1. General. At Shopfloor’s sole discretion, Shopfloor may offer trial access to some or all of the Solution to prospective customers who have contacted Shopfloor for consultation and who do not yet hold an active Subscription (“Trial”). Where a Trial is granted, Shopfloor will make the applicable part of the Solution (“Trial Service”) available to the prospective customer on a trial basis until the earlier of: (a) the end of the Trial period, which shall not exceed sixty (60) days; (b) the prospective customer paying Fees to access the part of the Solution covered by the Trial Service; or (c) earlier termination by Shopfloor in its sole discretion. Additional Terms may be applicable to the Trial Service and will be made available at the time of the Trial grant (as applicable) and will be incorporated into these Terms by reference. Use of a Trial Service is subject to these Terms and may be provided to the registering User (and their Authorized Users, as applicable) up to certain limits.

   2. Loss of Features. At the end of a Trial period, any User Data, User Content, and Solution customizations may be permanently lost unless the registering User purchases a subscription to the same features of the Solution as the Trial Service or exports such data before the end of the Trial period.

   3. Risk Allocation. Trial Services are provided “as-is” without any representation or warranty. Shopfloor shall have no indemnification obligations nor liability of any type with respect to any Trial Service unless such exclusion of liability is not enforceable under applicable law, in which case Shopfloor’s liability with respect to the Trial Services provided shall not exceed $100.00. Without limiting the foregoing, Shopfloor and its affiliates and licensors do not represent or warrant that use of a Trial Service will meet the User’s requirement or will be uninterrupted, timely, secure, or free from error.

   4. User Liability. A User shall be fully liable to Shopfloor for any damages to Shopfloor arising out of the User’s use of a Trial Service during the Trial period, including without limitation, any breach by the User of these Terms during the Trial period.

4. Fees and Payment.

   1. Fees. The applicable fees governing Customer’s (and their Authorized Users’) use of the Solution (“Fees”) shall be based on the Subscription tier selected by Customer at the time of Subscription purchase, together with any applicable seat add-on fees for additional Authorized Users. Fees are charged on a recurring subscription basis and are not usage-based. The Customer must maintain accurate payment information and notify Shopfloor of any changes to billing information. The Customer must provide a valid payment method within fourteen (14) days of a missed Fee payment to continue accessing the Solution without interruption. All Fees are non-refundable.

   2. Changes to Tier. If the Customer upgrades its Subscription tier, the new tier and associated Fees take effect immediately, and the Customer’s payment method will be charged a prorated amount for the remainder of the then-current billing cycle, as calculated and processed by Shopfloor’s payment processor, with the full Fees for the new tier applying from the next renewal. If the Customer downgrades their Subscription tier, the downgrade will take effect at the start of the next Subscription billing cycle. Until that time, the Customer retains access to the features of its current tier. A downgrade does not entitle the Customer to any refund or credit for the unused portion of the current billing cycle, and this applies equally to monthly and annual Subscriptions. The Customer acknowledges that downgrading may result in reduced features, capacity, or functionality of the Solution.

   3. Billing. Recurring Fees will be billed automatically on a cycle commencing on the date of the Customer’s initial payment, as administered by Shopfloor’s payment processor. Billing of recurring Fees will be subject to automatic renewals, as set out in Section 5 below. A Customer may cancel their Subscription per Section 5 below.

   4. Processing. Fees shall be processed via a Third-Party Service. If a payment method is invalid or outdated or otherwise not able to be charged Fees on the billing date, Shopfloor’s payment processor will automatically attempt to re-process the Fee payment in accordance with its standard retry schedule. The consequences of non-payment following exhaustion of all automated retry attempts are set out in Sections 4.5 and 4.7. Shopfloor may also update your billing requirements following any payment failure.

   5. Overdue Payments. If a payment method on file is declined or a Fee payment otherwise fails, Shopfloor’s payment processor will automatically attempt to re-process the payment in accordance with its standard retry schedule, typically over an approximately fourteen (14) day period. During this retry period, you retain full access to the paid features of your Subscription tier. If you update your payment method during this period, the outstanding charge will be re-attempted promptly. If the payment remains outstanding after all automated retry attempts have been exhausted, Shopfloor will downgrade your account to the free tier and restrict access to paid features in accordance with Section 4.7. Excess Authorized Users beyond the free tier seat limit will be deactivated but not deleted. Shopfloor does not charge interest or late payment fees on overdue amounts. The foregoing does not limit any other rights or remedies available to Shopfloor under these Terms.

   6. Taxes. All Fees are exclusive of any taxes, duties or levies assessed by applicable governmental authorities (“Taxes”). All Taxes (exclusive of any Taxes based upon Shopfloor’s net income) shall be assumed by and paid for by Customer, not Shopfloor.

   7. Suspension of Solution. If all automated payment retry attempts are exhausted and outstanding Fees remain unpaid, Shopfloor will downgrade Customer’s account to the free tier and restrict access to paid features of the Solution, without liability to User or any third party, until all outstanding Fees are paid in full and Customer re-subscribes to the applicable Subscription tier. Shopfloor reserves the right to implement additional access restrictions at its sole discretion. The foregoing does not limit any other rights or remedies available to Shopfloor under these Terms, including those set out in Section 5.4.

   8. Consulting Services. These Terms govern access to and use of the Solution only. Any consulting, advisory, or professional services offered by Shopfloor are provided separately from the Solution and are governed exclusively by the terms of a separate written agreement between Shopfloor and the applicable Customer. No consulting services are provided under or through these Terms.

5. Term and Termination.

   1. Term. These Terms shall be effective between Shopfloor and User as of the date of User’s acceptance of these Terms and will remain in effect for as long as the User is authorized to access and use the Solution under an active Subscription or Trial.

   2. Renewals. On the date the initial Subscription term expires, the Subscription shall automatically renew for successive Subscription terms equal in duration to the initial Subscription term at Shopfloor’s then-current Fees. Customer may cancel their Subscription at any time by providing written notice to Shopfloor. Upon cancellation, Customer’s access to the Solution will remain active until the end of the then-current Subscription billing cycle, at which point the Subscription will terminate and no further Fees will be charged. Fees paid for the remainder of the current billing cycle are non-refundable.

   3. Termination of Subscription. Customer may cancel their Subscription at any time in accordance with Section 5.2. In addition, either party may terminate a Subscription for cause: (i) upon thirty (30) days written notice to the other party of the other party’s material breach of these Terms if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

   4. Suspension of Access. Notwithstanding anything in these Terms to the contrary, Shopfloor may, at its sole discretion, suspend or restrict your access to the Solution upon the occurrence of any of the following: (i) degradation or instability of any part of the Solution, in which case we will endeavor to provide electronic notice; (ii) if all automated payment retry attempts have been exhausted and outstanding Fees remain unpaid, or if Customer’s account has been downgraded to the free tier pursuant to Section 4.7; (iii) an emergency, suspected fraud, or enforcement by external authorities or regulatory requirement, without notice or on provision of prior electronic notice where practicable; and (iv) failure to abide by these Terms. Shopfloor will have no responsibility or liability for any losses, lost profits, potential lost business opportunities or other damages that might arise in relation to Shopfloor’s suspension of access to the Solution.

   5. Result of Termination. Upon termination by Customer, Customer and Authorized Users will continue to have access to the Solution for the remaining duration of the pre-paid Subscription period. Upon termination by Shopfloor, Customer and Authorized Users will no longer be able to access the Solution. Termination may result in the loss of features or capacity of your Account. Following termination, subject to any retention measures in the Privacy Notice, User Data may be deleted from Shopfloor’s systems. Upon termination, Customer remains liable for all Fees incurred and owing under these Terms. The following provisions shall survive termination: 1.5, 2-4, 5.5, 6, 7.1, 7.3-7.6, 8-12.

6. Third Parties and Artificial Intelligence.

   1. Third Party Interactions. Shopfloor may feature, recommend, or link to third-party solution providers through the Solution or Website, including through referral or affiliate links. In some cases, Shopfloor may receive referral compensation or extend a discount in connection with such arrangements. Any registration, onboarding, implementation, pricing, payment, account creation, account management, or other dealings by you with those third-party providers are solely between you and the applicable third party. Shopfloor does not own, operate, or control those third-party products or services, and is not responsible for them. Solution provider content displayed through the Solution or Website, including but not limited to pricing, features, product descriptions, promotional offers, availability, terms, and any other representations (collectively, “Provider Content”), is submitted directly by the applicable third-party provider. Shopfloor does not independently verify, warrant, or guarantee the accuracy, completeness, currency, or reliability of any Provider Content. Provider Content may not reflect a provider’s current offerings, pricing, or terms at any given time. In the event of any discrepancy between Provider Content displayed on the Solution or Website and information provided directly by the applicable third-party provider, the third-party provider’s own materials and documentation shall be the authoritative source of truth. Shopfloor disclaims all liability arising from any inaccuracy, incompleteness, or outdated nature of any Provider Content, including any loss or damage arising from a User’s reliance on such content. You are solely responsible for independently verifying the accuracy of any Provider Content before making any decisions or entering into any arrangements with a third-party provider. Shopfloor does not endorse or control, and disclaims all liability arising from your interactions with, any such third parties.

   2. Third-Party Services. Some aspects of the Solution may integrate with or rely on third-party platforms and services that are not owned or controlled by Shopfloor (“Third-Party Services”). Your use and/or enabling of any such Third-Party Services will be subject to any terms which govern and/or apply to such Third-Party Service. If you choose to use or enable a Third-Party Service, you understand and acknowledge the Third-Party Service may access User Data and User Content as appropriate for the interoperation of that Third-Party Service with the Solution. Shopfloor does not guarantee the continued availability of any Third-Party Services and may cease providing or integrating with them at its discretion without liability to you or any third party.

   3. Artificial Intelligence. Shopfloor may, in the future, integrate certain features or functionality of the Solution with artificial intelligence technologies (“AI Services”). AI Services are not currently integrated into the Solution. If and when AI Services are introduced, they may be proprietary to Shopfloor or may be Third-Party Services (in whole or in part), and Shopfloor will update these Terms accordingly. Where AI Services are available, outputs generated by or for a User using AI Services will constitute User Content. Due to the nature of machine learning, outputs from AI Services may not be unique across Users. Shopfloor cannot guarantee the accuracy, completeness, or suitability of any output from any AI Services. You are solely responsible for independently verifying the accuracy and suitability of any AI-generated outputs, and you agree to exercise your own good judgement and ensure sufficient human oversight in relying on any such outputs.

   4. Solution Provider Profiles. The Solution and Website may include dedicated profiles for third-party solution providers (“Solution Provider Profiles”) that feature Provider Content submitted by those providers. Solution Provider Profiles are provided for informational purposes only and are intended to assist Users in identifying potentially relevant third-party products and services. Shopfloor makes no representations or warranties regarding the accuracy, completeness, or timeliness of any Solution Provider Profile or the Provider Content contained therein. The inclusion of a third-party solution provider in the Solution or Website does not constitute an endorsement, recommendation, or guarantee by Shopfloor of that provider’s products, services, pricing, or business practices. Shopfloor is not a party to any transaction, agreement, or arrangement between a User and a third-party solution provider, and shall have no liability whatsoever arising from or in connection with any such transaction, agreement, or arrangement. Users acknowledge and agree that any reliance on Provider Content is at their own risk, and that they are responsible for conducting their own due diligence before engaging with any third-party provider.

7. Intellectual Property and Content.

   1. Reservation of Rights. Shopfloor and its licensors own all right, title and interest, including all related intellectual property rights, in and to (i) the Solution (including, without limitation, the underlying AI Services proprietary to Shopfloor) and (ii) any content, information, or materials made available by Shopfloor to User via the Solution or Website, excluding User Content (“Shopfloor Content”), which are protected from unauthorized copying and dissemination by intellectual property laws. Shopfloor reserves all rights not expressly granted under these Terms. Nothing in these Terms gives you a right or license to use Shopfloor’s names, trademarks, logos, domain names, and other distinctive brand features without our prior written consent, and all goodwill generated from the use of the foregoing will inure to our exclusive benefit.

   2. License to User. Subject to these Terms, during the term of your Solution access set out in Section 5.1 above, Shopfloor grants you a non-transferable, non-exclusive, revocable, limited license to access and use the Shopfloor Content for your internal business purposes in connection with use of the Solution. Shopfloor Content is licensed to you and not sold.

   3. License to Shopfloor. While using the Solution, Users can submit, share or otherwise make data or content available to Shopfloor via the Solution, either directly via inputs or indirectly via a Third-Party Service (“User Data”). “User Data” means data and content submitted directly by Users via the Solution, such as company profile information, KPI inputs, and operational or business metrics. As between Shopfloor and User, User retains ownership of User Data. User Data excludes any data, analyses, or content generated by or for User through the Solution, whether based on or derived from User Data or otherwise, including without limitation benchmark comparisons, diagnostic results, insights, recommendations, growth roadmaps, and exported reports or PDF outputs (“User Content”). You hereby grant Shopfloor and its agents a non-exclusive, royalty-free, worldwide license to use User Data and User Content as reasonably required to provide, develop, and improve the Solution and to meet Shopfloor’s obligations under these Terms. For clarity, this Section includes the right for Shopfloor to (i) develop and improve Shopfloor’s proprietary AI Services; and (ii) create aggregated and anonymized statistical analytics regarding Solution parameters and characteristics (“Aggregated Statistics”). Shopfloor shall own all Aggregated Statistics.

   4. User Data Responsibilities. By submitting, sharing, or otherwise making User Data available to Shopfloor via the Solution, you represent and warrant that you have all necessary rights to allow Shopfloor to use and process User Data as set out in these Terms, and that such use will not infringe the rights of any third party. For clarity, you are solely responsible for: (i) the accuracy, quality, integrity, legality, reliability, and appropriateness of User Data; and (ii) obtaining all necessary consents, approvals, and third-party licenses, and providing all required notices in accordance with applicable laws to ensure User Data can be lawfully shared with and used by Shopfloor under these Terms. Shopfloor will maintain appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of User Data.

   5. Feedback. Shopfloor shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Solution and/or any other Shopfloor products or services any suggestions, enhancement requests, recommendations or other feedback provided to Shopfloor by you relating to the Solution.

   6. Publicity. Shopfloor may use Customer's name and logo to identify Customer as a customer, including on the Website, in accordance with Customer’s standard guidelines governing use of its logos (if any are provided by Customer to Shopfloor). Shopfloor agrees to promptly stop using the Customer’s name and logo in any new marketing or publicity initiatives upon written request.

8. Confidentiality.

   1. Definition. “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to business and marketing plans, know-how, technology, technical and financial information, product designs, and business processes. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
   2. Protection. The Receiving Party shall protect the Disclosing Party’s Confidential Information using the same degree of care that it uses to protect its own confidential information of like kind, but in no event less than reasonable care. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any third party other than its affiliates, employees, contractors, or advisors who are bound by confidentiality obligations no less protective than those set out in these Terms. The Receiving Party shall remain responsible for compliance with this “Confidentiality” section by such third parties. The Disclosing Party retains all rights in and to its Confidential Information.
   3. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure.
   4. 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.

9. Disclaimers and Warranties.

   1. Warranties. Each party represents and warrants that: (i) it will perform its respective obligations under these Terms in accordance with all applicable laws; (ii) it has the legal right and authority to enter into these Terms; and (iii) these Terms form a binding legal obligation on behalf of such party. Shopfloor represents and warrants that during the term of User’s authorized access and use of the Solution, it will provide the Solution in a manner consistent with general industry standards reasonably applicable to the provision thereof.
   2. Disclaimer. SHOPFLOOR DOES NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOLUTION. EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS, THE SOLUTION (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY SHOPFLOOR TO USER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHOPFLOOR HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, SHOPFLOOR EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO USER IN CONNECTION WITH USER’S USE OF THE SOLUTION (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON FOR ANY PURPOSE WHATSOEVER.

10. Indemnification. User shall defend, indemnify and hold Shopfloor and its subsidiaries, affiliates, officers, agents, and employees (“Indemnified Parties”) harmless against any and all claims, actions, allegations, damages, losses, liabilities and expenses (of whatever form or nature, including, without limitation, reasonable attorneys’ fees and expenses and all costs of litigation), whether direct or indirect, that Shopfloor or any related party may sustain as a result of any acts, errors or omissions relating to User’s (and in the case of Customer, its Authorized Users’): (i) breach of these Terms or any applicable Additional Terms; (ii) negligence or willful misconduct; (iii) violation of any third party’s rights, including, but not limited to, any right of privacy or intellectual property; or (iv) claims arising in connection with User Data or User Content (each a “Claim”). As condition for such indemnity, Shopfloor shall: (a) promptly gives written notice of each Claim to User; (b) give User sole control of the defense and settlement of each Claim (provided that User may not settle or defend any Claim unless it unconditionally releases Indemnified Parties of all liability); and (c) provides to User, at User’s cost, all reasonable assistance in respect to each Claim. This provision does not require User to indemnify Shopfloor for any unconscionable commercial practice by Shopfloor or for Shopfloor’s fraud, deception, misrepresentation, concealment, suppression, or omission of any material fact in connection with the Solution. The User acknowledges that for the purpose of Section 10, Shopfloor is acting as agent and trustee of Indemnified Parties.

11. Limitation of Liability.

    1. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER SHOPFLOOR OR A USER HAVE LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM OR ARISING OUT OF THE TERMS OR THE SOLUTION, USE OR INABILITY TO USE THE SOLUTION, FAILURE OF THE SOLUTION TO PERFORM AS EXPECTED, LOSS OF GOODWILL, LOSS OF DATA OR PROFITS, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
    2. Limitation of Liability. AS BETWEEN SHOPFLOOR AND A USER, EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATING TO THESE TERMS SHALL IN NO EVENT EXCEED THE GREATER OF (I) FEES PAID BY THE USER TO SHOPFLOOR DURING THE TWELVE (12) MONTHS PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE; OR (II) CAD $100. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS HEREUNDER.
    3. Certain Damages Not Excluded. NOTWITHSTANDING SECTIONS 11.1 AND 11.2, NO LIMITATION OF LIABILITY SET FORTH IN THESE TERMS SHALL APPLY TO: (I) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF SHOPFLOOR’S INTELLECTUAL PROPERTY RIGHTS; (II) ANY CLAIMS FOR NON-PAYMENT OF FEES; OR (III) ANY INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS.

12. General

    1. Relationship of the Parties. The parties are independent contractors. These Terms do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency, or franchisor franchisee relationship between the parties hereto.
    2. No Third-Party Beneficiaries. Except as expressly provided in these Terms in Section 10, there are no third-party beneficiaries to these Terms.
    3. Governing Law and Jurisdiction. Any claim relating to the Solution or these Terms will be governed by and interpreted in accordance with the laws of the Province of Ontario, Canada, without reference to its conflict-of-laws principles. Any dispute arising out of or related to your use of the Solution or these Terms will be brought in, and you hereby consent to, the exclusive jurisdiction and venue in, the competent courts of Ottawa, Ontario, Canada. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
    4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Shopfloor may assign these Terms in their entirety, without your consent, to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its business, shares, or assets. Any attempt by a party to assign its rights or obligations under these Terms in breach of this section shall be void and of no effect. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
    5. Severability. If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision.
    6. No Waiver. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
    7. Force Majeure. Neither party shall be responsible for its failure to perform its non-monetary obligations under these Terms to the extent caused by 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.
    8. Entire Agreement. These Terms, including any applicable Additional Terms, constitute the final, complete, and exclusive agreement between the parties with respect to the subject matter hereof, and supersede any prior or contemporaneous agreement, proposal, or representation (whether written or oral) concerning its subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in a User’s purchase order or in any other order documentation shall be incorporated into or form any part of these Terms, and all such terms or conditions shall be null and void.
    9. Notices. Unless otherwise stated in these Terms, Shopfloor may give notice to you by means of: (i) a general notice in your Account, effective the following business day after enacting the notice; (ii) by electronic mail to your e-mail address in your Registration Data, effective the following business day; or (iii) by mail to the address in your Registration Data, the second business day after mailing. You may give notice to Shopfloor by e-mail to support@shopfloorsolutions.ca, with such notice to be deemed given the following business day after sending the e-mail. Notices to Shopfloor by mail should be addressed to: Shopfloor Solutions Inc., 1294 Amesbrooke Dr., Ottawa, Ontario, K2C 2E9, Canada. All notices shall be in writing.