Marmot Platform Service Terms
These Platform Services Terms (the "Agreement") is a legal agreement between you and Marmot Labs Inc. ("Marmot") respecting your use of Marmot services as described herein and on Marmot’s website. BY INDICATING YOUR ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY OTHERWISE USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. If you have any questions or concerns about the terms of this agreement, please contact us at support@decision.io or at our mailing address:
Marmot Labs c/o VeloCity Garage
Suite 100, 151 Charles Street West
Kitchener, Ontario, Canada
N2G 1H6.
1. DEFINITIONS
1.1 "Agreement" means, collectively, these Platform Services Terms, all Exhibits to these Platform Services Terms and all Statements of Work made pursuant to this Agreement (as may be amended from time to time).
1.2 "Authority" means any government authority, agency, body or department, whether federal, provincial, state or municipal, having or claiming jurisdiction over the Agreement and "Authorities" means all such authorities, agencies, bodies and departments.
1.3 "Client" means the entity agreeing to be bound by this Agreement by accepting it as described above.
1.4 "Client Content" means any and all materials provided by (or on behalf of) Client, including text, information, data, images (still and moving), trade-marks, and logos, and any portion thereof, and/or and all data and information generated by Client’s (and Users’) use of the Platform and the Services; Client Content may be further defined in a Statement of Work.
1.5 "Deliverables" means any deliverables (including products, custom development, Documentation, materials and other assets of any kind, including any documents and materials in either printed or electronic form, upgrades and modifications) to be delivered or provided to Client by Marmot through use of the Platform or otherwise in connection with the provision of Services by Marmot provided pursuant to this Agreement.
1.6 "Documentation" means the technical publications relating to the Platform, the Services and/or the Deliverables, made available by Marmot to Client hereunder, whether in electronic or paper form or integrated into the Platform, including any described in a Statement of Work.
1.7 "Effective Date" means the date this Agreement takes legal effect, being the date that Client accepts this Agreement as set forth above.
1.8 "Intellectual Property Rights" means (a) any and all proprietary rights provided under (i) patent law, (ii) copyright law, (iii) trade-mark law, (iv) design patent or industrial design law or (v) any other statutory provision or common law principle applicable to this Agreement, including trade dress and trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.
1.9 "Marmot" means Marmot Labs Inc.
1.10 "Person" means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, Limited Liability Company, trust, business association, group acting in concert, or any person acting in a representative capacity.
1.11 "Platform" means all decision making and management system software, software development toolkits and other toolkits, technology and infrastructure used by Marmot and made available to Client pursuant to this Agreement and as further described on Marmot’s website, including all related Intellectual Property Rights, but excluding any Client Content.
1.12 "Proceeding" means any action, claim, demand, lawsuit or other proceeding.
1.13 "Requirements of Law" mean all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, official plans, permits, licenses, authorizations, directions, and agreements with all Authorities that now or at any time hereafter may be applicable to either the Agreement, the Platform, the Services, the Deliverables and the Documentation or any part of them.
1.14 "Services" means the services to be provided by Marmot to Client through use of, or in connection with, the Platform as set forth on Marmot’s website (including any form which Client has filled in), a Statement of Work or otherwise under this Agreement, including Platform configuration, implementation and set-up, informatics provisioning services, analytics and reporting services, management services, training services and other professional services where such services have been ordered by Client and confirmed as accepted in writing by Marmot.
1.15 "Statement of Work" means a document that sets forth any customized Services and Deliverables to be provided hereunder in addition to those obtained through Marmot’s website, which is signed by Client and Marmot and which references this Agreement. Each Statement of Work will be in a form agreed to by the parties.
1.16 "User" means Client’s employees and any other Person that Client authorizes to use the Platform in accordance with this Agreement.
Terms not defined in this Section 1 will have the meaning given to them elsewhere in this Agreement.
2. Scope
Subject to the terms and conditions described herein, Marmot will perform the Services and provide the Deliverables as agreed upon on Marmot’s website, applicable Statement(s) of Work or as otherwise agreed in this Agreement. To the extent Marmot’s performance hereunder is dependent on Client’s actions, any dates or time periods relevant to Marmot’s performance will be extended appropriately and equitably to reflect any delays due to Client.
3. USE RIGHTS; RESTRICTIONS
3.1 Access. Subject to Client’s compliance with the terms and conditions of this Agreement and applicable law, Marmot agrees that Client has a limited, revocable, non-transferable, non-exclusive right to access and use the Platform during the Term and solely for the internal purposes of Client in connection with Client Content solely as provided herein and/or in any Statement of Work signed by the parties. All rights not expressly granted to Client are reserved by Marmot and its licensors.
3.2 Client Information. In order to use the Services, Client must:
You specifically agree that Marmot may rely on the accuracy of the information provided by Client to Marmot, and that Marmot will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to Marmot.
3.3 Access to the Platform. The Platform may only be accessed by Users. Each User shall access the Platform by means of a specific account (each a "User Account") with unique identifications and passwords. User Accounts shall be administered by Client and Client shall assign a central administrator responsible for controlling the access of the Platform by Users. Users may not, and Client shall cause all Users to not, share User Accounts. Client shall ensure that each natural person accessing the Platform has their own User Account. Users are, and Client shall cause Users to be, solely responsible for the confidentiality and use of their User Account credentials. Client may not, and shall cause Users to not, transfer User Accounts for the Platform to any Person without Marmot’s prior written approval. As between Client and Marmot, Client shall be solely liable and responsible for all activity of Users in connection with the Platform. Client agrees that Marmot will not be liable for any loss, costs, damages, liabilities or expenses that may be incurred by Client or any other Person as a result of any User’s use of the Platform, or use of the Platform by a third party logging in with Client’s User Account credentials. Services will be subject to the usage limitation policies as published or provided to Client by Marmot from time to time, including in electronic form by posting on Marmot’s website. Such policies may include limitations on data storage space and equipment and software requirements. Client is solely responsible for compliance with such policies. Client further acknowledges and agrees that Marmot will exercise no control over Client’s use of the Services, and that Client is solely responsible for complying with the provisions of this Agreement and all applicable laws respecting use of the Services. Notwithstanding the foregoing, Marmot reserves the right to revoke service for any abusive conduct or fraudulent use of the Services and to cease the Services, temporarily or permanently, in the event that Client’s use of the Services or the provision of the Services constitutes, in Marmot’s reasonable judgment, a threat to Marmot’s or any third party’s computer systems, networks, files, materials or other data.
3.4 Restrictions. Except as expressly permitted by Marmot or to the extent expressly authorized by the Platform, Client will not (and will not allow any Person to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Platform, any Services or Deliverables; (ii) modify, translate, or create derivative works based on the Platform, the Services or Deliverables; (iii) rent, lease, distribute, sublicense, resell, pledge, assign, or otherwise transfer or encumber rights to the Platform, any Services or Deliverables; (iv) use the Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party, other than end users of the Deliverables; or (v) remove or otherwise alter any proprietary notices or labels from the Platform, the Services or any Deliverables or any portion thereof. Client will use the Platform, all Services and Deliverables solely in compliance with all Requirements of Laws. Client will also ensure that their use of the Services does not interfere with, degrade, or adversely affect any software, system, network or data used by any person, including Marmot and other Users (including by ensuring that Client does not upload any viruses or other harmful code in using the Services or by placing an undue burden upon the CPUs, servers or other resources used to provide the Services). Client also agrees not to interfere with or in any manner compromise any of Marmot’s security measures.
3.5 Ownership. Except for the rights and licenses expressly granted under this Section 3, Marmot retains all right, title, and interest in and to all Services, Deliverables, and other Intellectual Property Rights created, used, or provided by Marmot to Client pursuant to this Agreement, including the Platform. Client acknowledges that Marmot Intellectual Property Rights includes data, modules, components, designs, utilities, objects, processes, program listings, tools, models, diagrams, analysis frameworks, leading practices, trade-marks, patents, industrial designs, know-how, show-how, software, and specifications owned or developed by Marmot and that nothing contained herein will constitute an assignment or transfer of any such Marmot Intellectual Property Rights to Client;
3.6 Suggestions. Client acknowledges and agrees that any suggestions, enhancement requests, recommendations or other feedback provided to Marmot by Client, including Users, relating to the Platform, the Services and the Services (or any part thereof) (collectively, "Submissions") shall become Marmot’s sole property. Marmot shall own exclusive rights, including all Intellectual Property Rights, in and to all Submissions. Marmot shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to Client. In the event that any Intellectual Property Rights in any Submissions vests, or has vested, in Client, Client hereby assigns to Marmot all of Client’s right, title and interest in all such Submissions and Client hereby waives in favour of Marmot any of Client’s moral rights in and to all such Submissions.
3.7 Customizations. Client acknowledges and agrees that any customization, modification, derivatives, improvement, enhancement or other changes made to the Platform, the Services and the Deliverables at Client’s request (for greater certainty, which excludes any Client Content) (collectively, "Customizations") are Marmot’s sole property, whether or not such Customizations were developed by Marmot for Client, developed in collaboration with Client or otherwise developed by or for Marmot. Marmot shall own exclusive rights, including all Intellectual Property Rights, in and to all Customizations. Marmot shall be entitled to the unrestricted use and dissemination of any Customizations for any purpose, commercial or otherwise, without acknowledgment or compensation to Client. In the event that any Intellectual Property Rights in any Customizations vests in Client, Client hereby assigns to Marmot all of Client’s right, title and interest in all such Customizations and Client hereby waives in favour of Marmot any of Client’s moral rights in and to all such Customizations.
3.8 Marks. Marmot grants to Client, and Client grants to Marmot, a limited, revocable, non-transferable (except as otherwise set out in Section 12), non-exclusive, royalty-free, license to reproduce and display the other’s logos, trade-marks, trade names and other similar identifying material (the "Marks"). Any and all use of a party’s Marks hereunder will inure exclusively to the benefit of the owner of the Marks. This Agreement does not convey any ownership interest in or to the other party’s Marks, but only a limited license that is revocable as set forth in this Agreement. Marmot will only reproduce and display Client’s Marks that Client uploads into the Platform and in accordance with Client’s selections made through the Platform’s online interface ("Interface"). Client will only reproduce and display Marmot’s Marks as such Marks are incorporated into and made available to Client as part of the Platform, the Services or Deliverables. Client agrees that Marmot may use Client’s name and logo to identify Client as a Client of Marmot on Marmot's website, and as a part of a general list of Marmot's clients for use and reference in Marmot's corporate, promotional and marketing literature and Marmot’s workflows, PDF’s and/or galleries on Marmot’s website. Additionally, Client agrees that Marmot may issue a press release identifying Client as a client of Marmot and describing Client’s intended utilization and the benefits that Client expects to receive from use of Marmot's services (including, but not limited to the Platform). The content of any press release identifying Client as a Client of Marmot will be subject to Client's prior approval.
3.9 Support. Support, maintenance and training respecting the Platform and Services will be provided in accordance with Marmot’s standard terms and conditions found on Marmot’s website, as updated from time to time, and may be subject to additional fees. Any additional or customized support and training must be subject to a separate written agreement or Statement of Work between Client and Marmot.
4. CLIENT CONTENT
4.1 Client Content Rights. Client grants to Marmot, throughout the Term, a limited, revocable, non-transferable, non-exclusive, royalty-free, license to use, reproduce, promote, distribute, modify, publicly display and perform, cache, and transmit Client Content via the Platform solely for the purposes of this Agreement and in accordance with Client’s selection through the Interface. Without limiting any of Client’s obligations under this Agreement, Client will provide Marmot, in the form and format specified by Marmot in any applicable Statement of Work, all Client Content reasonably required for Marmot’s performance hereunder. For avoidance of doubt, although Marmot will have the right hereunder to host, store, encode, reproduce and/or distribute the Client Content (among other things) in order to provide the Platform, the Services and the Deliverables in accordance with this Agreement, the parties agree that Marmot does not take legal title to any Client Content supplied by Client. Access to Client Content will be limited to only those employees, contractors and representatives of Marmot that have a need to access such Client Content. Client acknowledges and agrees that Marmot cannot guarantee data integrity on the Platform, and that it is solely Client’s responsibility to back up any information and data that used in conjunction with the Services. Upon termination or expiration of this Agreement, Marmot will retain Client Content on its systems for a period of six (6) months; if Client has not reactivated its account and agreed to the then-current version of this Agreement within such period, Marmot will have the right to delete all Client Content from its systems.
4.2 Aggregate Data. Client hereby grants to Marmot a world-wide fully-paid, royalty-free and irrevocable right and license to analyze and use Client Content to extract information (collectively, "Aggregate Data") to create derivative works therefrom (including, but not limited to, the right to prepare comparative benchmark reports). Client agrees that Marmot shall own and may disclose and publish Aggregate Data on an Aggregate Basis (as defined below) to any Person through any means, including, without limitation, through research reports, case studies, press releases, advertising or similar communications. For greater certainty, Marmot is prohibited from disclosing Client Content other than on an Aggregate Basis, except with Client’s express written consent or as otherwise set forth in this Agreement. "Aggregate Basis" means that Marmot combines parts of information collected or processed from Client that does not contain Client’s name or the names of Marmot’s other clients that use the Platform and/or the Services and in a manner that does not contain or disclose any other identifiable information about Client, Users or other Persons.
5. PAYMENT OF FEES
5.1 Fees. Client will pay Marmot fees for the Services and Deliverables and for the use of the Platform as set forth on Marmot’s website and any individual Statement of Work (collectively, "Fees"). Client will pay all invoices issued under this Agreement in accordance with the payment terms set out on Marmot’s website or as the parties may otherwise agree in writing. Client will be responsible for and will pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to the Fees (except for taxes on Marmot’s income). All payments will be made without deduction for withholding taxes. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Client fails to pay any Fees when due, then in addition to any other rights Marmot may have, Marmot will have the right to suspend delivery of all or a portion of the Platform, Deliverables or Services to Client, provided that Marmot has supplied Client prior notice and thirty (30) days’ opportunity to cure such deficiency If Client believes that Marmot has billed Client incorrectly, Client must notify Marmot thereof (in writing) no later than thirty (30) days after the date of the invoice. If Marmot pursues collection efforts against Client due to Client’s failure to pay Fees due under this Agreement, Client will pay Marmot’s reasonable costs of collection, including any legal fees related thereto. Marmot will be entitled to change any of the Fees on at least thirty (30) days’ prior notice to Client, which may be effected by a notification on Marmot’s website that it will be changing its standard Fees as of a certain date, provided that if Client has obtained an express written commitment from Marmot of fixed levels of Fees for a certain term, the changed Fees shall not apply until the end of such committed term.
6. TERM; TERMINATION
6.1 Term. Subject to earlier termination as provided below, this Agreement will commence on the Effective Date and continue until the expiration date set forth in Marmot’s confirmation of Services ordered by Client (the "Initial Term").
6.2 Termination. Either party may terminate this Agreement and/or any Statement of Work upon thirty (30) days’ notice if the other party breaches any of the terms or conditions of this Agreement (or the applicable Statement of Work) and does not cure such breach within that thirty (30) day notice period. Either party may also terminate this Agreement for its convenience at any time upon thirty (30) days’ prior notice to the other party. A party may also terminate this Agreement (i) immediately, if the other party is declared insolvent or bankrupt; or (ii) if a petition is filed in any court to declare the other party bankrupt or for a reorganization under bankruptcy law or any similar statute and such petition is not dismissed in sixty (60) days or if a trustee in bankruptcy or a receiver or similar entity is appointed for the other party. This Agreement may also be terminated as provided for and in accordance with Section 5.1 (subject to the right of Marmot to revoke the notice set forth therein).
6.3 Effect of Termination. Termination or expiration of this Agreement will automatically terminate all Statements of Work entered hereunder. If applicable, Client will pay in full for the Services and Deliverables up to and including the last day on which the Services and Deliverables are provided. In the event that the Client terminates this Agreement for convenience pursuant to Section 6.2, Client shall pay to Marmot liquidated damages in an amount equal to twenty-five percent (25%) of the Fees applicable for the remainder of the then-current term (the "LDs"). The parties agree that the LDs are not a penalty, but represent a genuine and reasonable pre-estimate of the minimum damages that Marmot will suffer as a result of Client’s early termination of this Agreement for convenience. In addition, each Statement of Work may be terminated in accordance with its terms. Upon termination or expiration of this Agreement, all rights granted herein will revert to the granting party and all licenses will terminate, and Client will make no further use of the Platform, the Services or Deliverables. All accrued rights to payment and any terms and conditions of this Agreement, which by their nature extend beyond the termination or expiry of this Agreement, shall survive the termination or expiry of this Agreement including, without limitation, Sections 1, 3.4, 3.5, 3.6, 3.7, 4.2, 6.4, 7, 8.1, 9, 10.1, 11 and 12.
6.4 Return/Destruction of Client Content/Confidential Information. Within thirty (30) days of any termination or expiration of this Agreement, each party will return to the other party or destroy all Confidential Information of the other party. Additionally, Marmot will, after six (6) months of any termination or expiration of this Agreement, destroy all Client Content that it had used to perform the Services and supply the Platform and the Deliverables. unless, during such six (6) month period: (a) Client has reactivated its account (including by executing the then-current version of this Agreement) and/or (b) Marmot and Client specifically agree in writing to handle the Client Content in an alternative manner. It is solely Client’s responsibility to make alternative arrangements with Marmot within such six (6) month period if Client does not wish Client Content to be handled in this manner, and Marmot will have no liability whatsoever relating to the destruction of any Client Content (including with respect to the timeliness of such destruction) if Client fails to do so.
7. CONFIDENTIALITY
7.1 Confidential Information. As used in this Agreement, "Confidential Information" means all confidential information disclosed by a party (the "Disclosing Party") to the other party (the "Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Marmot’s Confidential Information shall include the Platform and the terms and conditions of this Agreement; and Confidential Information of each party shall include as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, 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) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iii) was independently developed by the Receiving Party.
7.2 The Receiving Party:
7.3 The Receiving Party will be entitled to disclose Confidential Information if such disclosure is required by a court, administrative body, or regulatory body (including a stock exchange) of competent jurisdiction, whether as a result of any application made by the Receiving Party or an investigation initiated by the regulatory body, or otherwise, provided that the Receiving Party will:
8. REPRESENTATIONS AND WARRANTIES
8.1 Client Warranties. Client represents, warrants and covenants to Marmot as follows: (i) Client exists under the laws of its own jurisdiction and is not under any contractual obligation that would preclude it from entering into this Agreement, granting the licenses granted hereunder or would interfere with the use of the Client Content provided under this Agreement; (ii) Client owns or has properly licensed all rights in the Client Content at all times during the Term; (iii) all Client Content and Client’s use of the Platform does not, nor will be, in violation of any Canadian Requirements of Laws and Requirements of Laws in the jurisdiction where Client is located; (iv) all Client Content does not and will not infringe the Intellectual Property Rights of any Person; (v) Client will comply with all relevant Canadian export and encryption laws and regulations; and (vi) neither this Agreement nor the performance of or exercise of rights under this Agreement will violate, conflict with, or result in the breach of any term, condition, or provision of any agreement or legal obligation (whether or not existing at the Effective Date) to which Client is a party or by which it may be bound, or constitute a default thereunder.
8.2 Marmot Warranties. Marmot represents, warrants and covenants as follows: (i) Marmot exists under the laws of the Province of Ontario, Canada and is not under any contractual obligation that would preclude it from entering into this Agreement; (ii) it is not under any contractual or other obligation that would preclude it from providing the Platform, the Services or the Deliverables or granting the licenses granted hereunder; (iii) it is the owner or creator or licensee of the Platform and has all rights necessary to perform its obligations hereunder; and (iv) it will perform the Services and provide the Deliverables in a good, workmanlike and professional manner.
9. DISCLAIMER
9.1 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES, DELIVERABLES, DOCUMENTATION, THE PLATFORM, AND ALL OTHER TECHNOLOGIES, INFORMATION AND MATERIALS PROVIDED BY MARMOT HEREUNDER ARE PROVIDED "AS IS" WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND AND MARMOT HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MARMOT DOES NOT WARRANT THAT THE PLATFORM, THE SERVICES, DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM CLIENT’S USE OF THE PLATFORM, DELIVERABLES OR SERVICES.
9.2 LIMITATION OF LIABILITY. MARMOT SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, FOR ANY: (A) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (EVEN IF THE PARTY CAUSING SUCH LOSS OR DAMAGE HAS BEEN ADVISED OR HAD KNOWLEDGE OF THE POSSIBILITY OF SAME OR COULD HAVE REASONABLY FORESEEN SAME), INCLUDING LOST BUSINESS REVENUE, LOSS OF PROFITS OR FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS); (B) COST OR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; AND/OR (C) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY CLIENT IN THE CURRENT TERM.
10. INDEMNIFICATION
10.1 Client Obligations. Client shall defend, indemnify, and hold Marmot harmless from any claims, costs, damages, losses, settlement fees, and expenses (including without limitation legal fees and disbursements) incurred directly or indirectly as a result of: (i) any breach of this Agreement whether by Client or Users; (ii) any action or inaction of Client; and/or (iii) any claim, suit, judgment, settlement, or cause of action alleging that any of Client Content infringes, violates or misappropriates of any Intellectual Property Right of any Person including, but not limited to, a patent, design, industrial design, copyright, trade secret or trademark or other proprietary right.
11. FORCE MAJEURE
Except for Client’s payment obligations, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to, earthquakes, loss of utilities, and other disasters. Notwithstanding the foregoing, If a party seeks to excuse itself from its obligations under this Agreement due to a force majeure event, that party will promptly notify the other party of the delay or non-performance, the reason for such delay or non-performance and the anticipated period of delay or non-performance. If the anticipated or actual delay or non-performance exceeds sixty (60) calendar days, the other party may immediately terminate the Agreement by giving notice of termination and such termination will be in addition to the other rights and remedies of the terminating party under the Agreement, at law or in equity.
12. MISCELLANEOUS
Every use of the words "including" or "includes" in this Agreement is to be construed as meaning "including without limitation" or "includes without limitation", respectively. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by Client except with Marmot’s prior written consent. This Agreement (including Statements of Work, which are incorporated herein by this reference) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications thereof must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and each party does not have any authority of any kind to bind the other in any respect whatsoever and neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied in the other party’s name or on its behalf. All notices, demands, consents, authorizations, approvals and other communications under this Agreement will be in writing and will be deemed to have been duly given when received, in respect of Client, at the applicable Client address provided through Marmot’s website in applying for the Services or, in respect of Marmot, at 151 Charles Street West, Suite 100, Kitchener, Ontario, N2G 1H6, Attention: President, or as a party may otherwise direct, as follows: if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement will be governed by the laws applicable in the Province of Ontario without regard to the conflict of law provisions thereof. With respect to all disputes arising in relation to this Agreement, the parties consent to exclusive jurisdiction and venue in the courts located in the City of Kitchener. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement.