Updated: December 26, 2022,
The Terms of Use (“Agreement”) govern the Client’s access to and the use of the services including any software as a service of the entity set forth under Section 11.18 (“Litespace”) on or through the Litespace website (the “Site”) https://litespace.io/ (“Services”). Capitalized terms have the definitions set forth herein.
If the Client registers for a free trial of any Litespace Services or for any Services that are free, the applicable provisions of this Agreement will also govern that free trial or those free Services. The term “Client” refers to the specific individual or legal entity that accepts this Agreement and receives any Service from Litespace (including free trial and free Services) and does not include any affiliates of such legal entity unless expressly stated otherwise in this Agreement, any Sales Order or any Additional Service Terms.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING A SALES ORDER THAT REFERENCES THIS AGREEMENT (a “Sales Order”), OR (3) USING FREE SERVICES, THE CLIENT AGREES TO THE TERMS OF THIS AGREEMENT EFFECTIVE AS OF THE EARLIEST OF THE DATE OF SUCH ACTION (the “Effective Date”). IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Litespace’s direct competitors are prohibited from accessing the Services, except with Litespace's prior written consent.
Please review Section 11.13 of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires the Client to resolve disputes with Litespace through final, binding arbitration on an individual basis. By entering into this Agreement, the Client is acknowledging that the Client has read and that the Client understands the terms of this Agreement and that the Client agrees to be bound by the arbitration provision and class action waiver.
2.1. Scope and Structure of the Agreement.
Litespace’s provision of any Services is subject to the terms of this Agreement, applicable Sales Order (“Sales Order”), and any additional service terms (“Additional Service Terms”) referenced herein or which Litespace may present the Client with for review and acceptance at the time the Client subscribes to any Services shall be incorporated into and form a part of this Agreement.
If the terms hereof conflict with any Additional Service Terms, the Additional Service Terms will govern with respect to the matters contemplated thereby.
Litespace will provide the Client with access to the subscription Services through the Internet during the Client’s Subscription Term specified on the applicable Sales Order.
The Services are subject to modification from time to time at Litespace’s sole discretion, for any purpose deemed appropriate by Litespace. Litespace will use reasonable efforts to give the Client prior written notice of any such modification.
2.2. Procurement of Services Pursuant to Sales Order(s).
Litespace personnel will perform the Services in accordance with this Agreement and an applicable Sales Order, each of which is incorporated into and within the terms of this Agreement. When the Client desires to procure Services from Litespace, the parties will execute a Sales Order which will specify, among other things, the type of services requested by the Client including but not limited to, a detailed description of Services requested by the Client in such Sales Order, and the duration of the term and fees due for such Services.
3.1. Grant of License to Hosted Service.
Subject to timely payment by the Client of fees for the Services as set forth in the applicable Sales Order, Litespace grants to the Client for the term of this Agreement a personal, non-exclusive, non-transferable, royalty-free, non-sublicensable, non-assignable, license to use and access on a hosted basis the Litespace Services solely for the Client’s internal business operations in accordance with the terms of this Agreement and the applicable exhibit and/or schedule. The Litespace Services do not include any Client specific customizations unless otherwise agreed in writing by the parties. The Litespace software and Services are hosted in Canada for Canadian and United States users only.
3.2. Restricted Uses. The Client will not:
3.3. Client’s Obligations:
3.4. Client’s Responsibility for Certain Information and Obligations related to the Services
The Client will designate and authorize either itself and/or one or more individuals with authority to (i) act on the Client’s behalf, (ii) provide information on the Client’s behalf, and (iii) bind the Client and/or the Client’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by the Client to access the Services by entering a confidential user ID and password. Such Client Account login information will entitle the Account Administrator, depending on their designation and the permissions given by the Client, to have the authority to input information and access, review, modify, and/or provide approvals on the Client’s behalf.
The Client is solely responsible for all actions taken under any Client Account that the Client has access to. Any actions taken under the Client Account that the Client has access to will be deemed authorized by the Client, regardless of the Client’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by the Client, an Account Administrator, or an authorized representative of the Client (an “Authorized Representative”), and (ii) actions that the Client, an Account Administrator, or an Authorized Representative (or anyone that Litespace reasonably believes to be the Client, an Account Administrator, or an Authorized Representative) directs or instructs Litespace to take on its behalf.
In addition, the Client is solely responsible for (i) following instructions that Litespace provides to the Client with respect to the Services, whether such instructions are provided via the Site, Services, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Services, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by the Client.
The Client will, and will cause authorized users of the Client Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any Client Account passwords or credentials, and any information accessible via the Client Account. If the Client believes or suspects that the Client Account or passwords or credentials for the Client’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, the Client must immediately notify Litespace. Litespace reserves the right to prevent access to the Services if Litespace has reason to believe that the Client Account or passwords or credentials for the Client Account have been compromised.
The Client is responsible for timely providing Litespace with the information required for Litespace to perform the Services. The Client may furnish such information directly to Litespace or via an Account Administrator or Authorized Representative, such as the Client’s accountant. Furthermore, the Client represents and warrants to Litespace that for any information that the Client shares with Litespace, whether directly, via its Account Administrator, or via its Authorized Representative, the Client will have the authority to share such information. The Client is responsible for the accuracy and completeness of the information provided to Litespace, and the Client will ensure that any such information, whether provided by the Client, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, the Client is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Litespace, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Litespace.
In addition, the Client, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents, or materials (collectively, the “Materials”) posted to Litespace Site by Litespace (or otherwise made available to the Client by Litespace) for the Client’s review, and the Client or its Account Administrators or Authorized Representatives must notify Litespace of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Litespace.
Litespace through the normal course of business may enter the Client’s information into the Site as instructed by the Client. The Client is responsible for checking to ensure the Client information entered is correct. Litespace shall not be held liable for any incorrect Client information entered into the Site.
The Client, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Litespace of any third-party notices that the Client may receive which could affect Litespace’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against the Client or Litespace in connection with the Services, such as notices from any government agencies regarding penalties or errors relating to the Services.
The Client agrees that, to the fullest extent permitted by law, the provision of the Client Account login credentials (e.g., username and password) or identity verification credentials to Litespace by the Client, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Site or otherwise (e.g., verbally telling a Litespace customer care representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
3.5. Records.
Litespace will store and host the Client’s records through the use of Litespace’s applications but does not serve as the Client’s record keeper. Litespace is responsible for ensuring data is backed up in multiple places and recoverable in case of natural disasters.
The Client will be responsible for retaining copies of all documentation received from or provided to Litespace in connection with the Services to the extent required by the Client or applicable law. For example, if the law requires documents to be printed in physical copies, that is the responsibility of the Client.
3.6. Use of Litespace Software and Services.
Litespace Services include confidential and proprietary information. The Client shall use the Litespace Services only for its internal business purposes. The Client shall not provide, directly or indirectly, any of the Litespace Services or any portion thereof to any other party. The Client shall not provide service bureau or other data processing services that make use of the Litespace Services or any part thereof without the express written consent of Litespace. The Client shall be responsible for the use of the Services by its employees, plan participants, and any other persons authorized by the Client to access or use the Services in accordance with the terms of this Agreement. The Client is responsible for the accuracy and completeness of all information and materials provided by the Client, its agents, or employees, regardless of form (“Client Content”).
3.7. Compliance.
3.7.1. Applicable Laws.
Each party will comply with applicable laws and regulations that affect its business generally, including any applicable anti-bribery, export control, and data protection laws, rules, and regulations. The Client warrants and agrees it is solely responsible for complying with all applicable federal, provincial, state, territorial, county, and local wage and hour and employment laws and regulations, including without limitation, rates of pay, overtime pay, bonus compensation, and employee classifications of overtime exemptions. For clarity, the Client represents that Personal Information (as hereinafter defined), transferred by the Client or at the Client’s direction to Litespace has been collected in accordance with applicable privacy and data protection laws, and Litespace agrees that it shall only process the Personal Information as needed to perform the Services, as instructed by the Client, or as required or permitted by law.
3.7.2. Design of the Services.
Litespace will design the Services, including the functions and processes applicable to the performance of the Services, to assist the Client in complying with its legal and regulatory requirements applicable to the Services, and Litespace will be responsible for the accuracy of such design. Notwithstanding the foregoing, the Client and not Litespace will be responsible for
- how it uses the Services to comply with its legal and regulatory requirements; and
- the consequences of any instructions that it gives or fails to give to Litespace, including as part of the implementation of the Services, provided Litespace follows such instructions.
3.7.3. No Legal or Regulatory Advice.
The Client acknowledges that Litespace has no responsibility for any services prior to the Effective Date of this Agreement, and agrees that in the performance of its Services, Litespace is not rendering any legal, tax, accounting, financial, regulatory, benefits, accounting, or investment advice to Client.
4.1. Client’s IP Rights.
Except for the rights expressly granted to Litespace in this Agreement, all rights, title, and interests in and to the Client Content, including all Intellectual Property Rights (as hereinafter defined) inherent therein and pertaining thereto, are owned exclusively by the Client or its licensors. The Client hereby grants to Litespace for the term of this Agreement a non-exclusive, worldwide, non-transferable, royalty-free license to use, edit, modify, adapt, translate, exhibit, publish, reproduce, copy and display the Client Content for the sole purpose of performing the Services; provided the Client has the right to pre-approve the use by Litespace of any of the Client’s trademarks or service marks. For the purposes of this Agreement, “Intellectual Property Rights” means all rights, title, and interest to or in patent, copyright, trademark, service mark, trade secret, business or trade name, know-how, and rights of a similar or corresponding character.
4.2. Litespace IP Rights.
The Client will retain ownership of the content of reports and other materials that include Client Content produced and delivered by Litespace as a part of the Services, provided that Litespace will be the owner of the format of such reports. To the extent any such reports or other materials incorporate any Litespace proprietary information, Litespace
- retains sole ownership of such proprietary information; and
- provides the Client a fully paid up, irrevocable, perpetual, royalty-free license to access and use same for its internal business purposes without the right to create derivative works (other than derivative works to be used solely for its internal business purposes) or to further distribute any of the foregoing rights except to its employees, plan participants and any other persons authorized by the Client to access or use the Services.
4.3. Ownership of Reports.
Except for the rights expressly granted to the Client in this Agreement, all rights, title, and interest in and to the Services, including all Intellectual Property Rights inherent therein and pertaining thereto, are owned exclusively by Litespace or its licensors. The Client will not obscure, alter or remove any copyright, trademark, service mark, or proprietary rights notices on any materials provided by Litespace in connection with the Services, and will not copy, decompile, recompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative work from, such Litespace materials.
4.4. Use of Logos
The Client hereby grants Litespace the express right to use the Client’s company logo in marketing, sales, financial, and public relations materials and other communications solely to identify the Client as a Litespace customer. Litespace hereby grants to the Client the express right to use Litespace’s logo solely to identify Litespace as a provider of services to the Client. Other than as expressly stated herein, neither party shall use the other party’s marks, codes, drawings, or specifications without the prior written permission of the other party.
All Confidential Information (defined below) disclosed hereunder will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least the same degree of care, discretion and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential information, but in no case less than reasonable care. The receiving party will limit access to Confidential Information to its employees and authorized representatives with a need to know and will instruct them to keep such information confidential. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party
Notwithstanding the foregoing,
5.1. Confidential Information.
“Confidential information” shall mean all information of a confidential or proprietary nature, including pricing and pricing-related information and all personally identifiable payroll and employee-level data, or know-how (including, but not limited to, information relating to research, products, software, development, inventions, and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective party,(regardless of whether they may be copyrighted, patented or trademarked), provided by the disclosing party to the receiving party for use in connection with Litespace Services.
5.2. Exceptions.
Notwithstanding the foregoing, Confidential Information shall not include information which
The obligations of Litespace set forth in this Section 5 shall not apply to any suggestions and feedback, ideas, enhancement requests, recommendations, or other information provided by the Client relating to the Litespace Services (all of the foregoing defined as “Feedback”) and the Client hereby grants to Litespace the right to make such use of Feedback in perpetuity to improve and enhance Litespace Services, in connection with any present or future Litespace product or service, and, accordingly, neither Litespace nor any of its clients or business partners shall have any obligation or liability to the Client with respect to any use or disclosure of such information.
6.1. Fees.
The Client shall pay Litespace for the Services at the rates specified in the applicable Sales Order after the Effective Date during the Initial Term of this Agreement. After the Initial Term, the Client shall pay Litespace for such Services at Litespace’s then prevailing prices for such Services. Litespace may increase prices for the Litespace Services at any time after the Initial Term upon at least thirty (30) days prior written notice to the Client if such change is part of a general price change by Litespace to its clients for affected items.
6.2. Invoicing and Payment Terms.
Commencement of billing for Services shall be set forth in the respective Sales Order governing the Services. The Client will pay all invoices in full within thirty (30) days of the invoice date. The Client shall reimburse Litespace for any expenses incurred, including interest and reasonable legal fees, in collecting amounts past due to Litespace hereunder that are not under good faith disputed by the Client.
6.3. Taxes.
The Client shall be responsible for payment of all taxes (excluding those on Litespace’s net income) relating to the provision of the Services, except to the extent a valid tax exemption certificate or other written documentation acceptable to Litespace to evidence the Client’s tax exemption status is provided by the Client to Litespace prior to the delivery of Services.
7.1. Term.
Subject to earlier termination as provided below, this Agreement is for the Subscription Term as specified in the Sales Order (the “Initial Term”). Unless stated otherwise in the Sales Order, the Subscription Term shall automatically renew for a one (1) year period at the list price in effect at the time of renewal unless either party gives the other party notice of non-renewal at least forty-five (45) days prior to the end of the then-current Subscription Term.
7.2. Termination for Cause.
Either party may terminate, in whole or in part, this Agreement or any Sales Order for cause if:
Litespace may also suspend performance immediately without prior notice in the event the Client, its employee(s), or any other third party
7.3. Termination Without Cause.
Litespace may terminate this Agreement without cause upon thirty (30) calendar days prior to written notice to the Client.
Litespace will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Litespace’s termination of this Agreement.
7.4. Termination/Suspension of Payment Services.
Without limiting the foregoing, the parties agree that any Services that involve electronic or cheque payments being made by Litespace to third parties on the Client’s behalf (collectively “Payment Services”) and at its direction involve a credit risk to Litespace. Such Services may be immediately suspended or terminated by Litespace without prior notice if
If Payment Services are not terminated despite the occurrence of any of the events described above, Litespace may require the Client to pay its outstanding and all future third-party payment amounts covered by Payment Services and/or Litespace’s fees and charges for Payment Services to Litespace:
7.5. Post-Termination.
If the use of any Litespace Services is or may be terminated by Litespace pursuant to Section 7.2, 7.3, or 7.4, Litespace shall be entitled to allocate any funds remitted or otherwise made available by the Client to Litespace in such priorities as Litespace (in its sole discretion) deems appropriate (including reimbursing Litespace for payments made by Litespace hereunder on the Client’s behalf to a third party). If any Litespace Services are terminated by either party hereto, the Client will immediately
Upon termination of any of the Service(s) and/or termination of this Agreement, any license or right to access and use such terminated Services(s) will automatically terminate; provided, however, that Litespace will, for 30 days after the effective date of termination, continue to provide the Client with the ability to access the Client’s account with Litespace for access or use of the Services (“Client Account”) in a limited capacity with respect to such terminated Service(s) to view and download information that was available in the Client’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While the Client has Limited Access Rights, the Client must use reasonable efforts to adequately secure, and keep confidential, any passwords or credentials for the Client’s Account, and any information accessible via the Client’s Account. Litespace may deny the Limited Access Rights to the Client, or Litespace may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that the Client may have at any time breached Section 3.2 and 3.3 of this Agreement.
7.6. Downgrades.
You may not downgrade your Services or reduce the number of seats under any Services during your Subscription Term. If you desire to downgrade your Services or reduce the number of seats under any Services for a Subsequent Term, you must provide Litespace with thirty (30) days advance written notice prior to the end of your then-current Subscription Term. Downgrading your Services may cause loss of content, features, or capacity of the Services as available to you under your Litespace Account, and Litespace does not accept any liability for such loss.
7.7. No Refunds.
Unless otherwise noted in this Agreement, if you elect to terminate your subscription to the Services or cancel your Litespace Account prior to the end of your then-current Subscription Term, no refunds or credits for subscription charges or other fees or payments will be provided to you.
7.8. Surviving Provisions.
Sections 3.2 (Restricted Use), 3.3 (Client Obligations), 4 (Intellectual Property), 5 (Confidentiality), 6 (Fees), 7.5 (Post Termination), 8 (Warranties, Disclaimer, and Limitation of Liability), 9 (Indemnification), and 11 (General Provisions) shall survive any termination or expiration of this Agreement.
8.1. Compliance.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement and there is no outstanding contract, commitment, or legal impediment which may limit, restrict, or impair its ability to perform its obligations hereunder. In addition, Litespace represents and warrants that it has all necessary rights and titles in and to the Service.
8.2. Performance.
Litespace represents and warrants that it will perform such Services in a diligent and professional manner, and the Services will comply with industry standards for such Services. Litespace further warrants that it will strictly comply with the descriptions and schedule as set forth in this Agreement and the applicable Sales Order.
8.3. Accuracy of Client Content
The Client represents and warrants that it is solely responsible for providing complete and accurate information to Litespace with respect to all Client Content, including without limitation, employee data, hours worked, rate of pay, authorized deductions, and tax withholdings.
8.4. DISCLAIMER.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES AND THE SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, AND Litespace AND ITS LICENSORS EXPRESSLY DISCLAIM ANY WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE, AND FREEDOM FROM PROGRAM ERRORS, VIRUSES OR ANY OTHER MALICIOUS CODE WITH RESPECT TO THE SERVICES AND SOFTWARE, ANY CUSTOM PROGRAMS CREATED BY LITESPACE OR ANY THIRD-PARTY SOFTWARE DELIVERED BY LITESPACE. LITESPACE AND ITS LICENSORS FURTHER DISCLAIM ANY WARRANTY THAT THE RESULTS OBTAINED THROUGH THE USE OF THE SERVICES AND SOFTWARE, ANY CUSTOM PROGRAMS CREATED BY LITESPACE, OR ANY THIRD-PARTY SOFTWARE DELIVERED BY LITESPACE WILL MEET THE CLIENT’S NEEDS.
8.5. Limitation of Liability.
Litespace shall be liable only for actual damages the Client may incur as a result of Litespace ‘s breach of, or exercise of its rights under, this Agreement, and shall not be liable for any special, indirect, incidental, punitive, or consequential damages which the Client may incur even if the likelihood of such damages was known or contemplated by Litespace and regardless of the legal or equitable theory of liability that the Client may assert, including, without limitation, loss or damage from subsequent wrongful dishonor resulting from any financial institutions’ acts or omissions. Litespace shall not be liable for any damages to the Client resulting from any decision by Litespace to withhold cheques in connection with the Client’s payroll due to concerns regarding the Client’s creditworthiness or because the Client failed to provide funds necessary to cover the Client’s payroll, and all applicable tax and other payments. Without limiting the generality of the foregoing, Litespace shall be excused from failing to act or any delay in acting if such failure or delay is caused by legal constraint, terrorist activity, interruption of transmission or communication facilities, equipment failure, war, emergency conditions or other circumstances beyond Litespace’s control. Subject to the foregoing limitations, Litespace’s liability for loss of interest resulting from its error or delay shall be calculated by using a rate equal to the average bank rate at the Bank of Canada for the period involved.
IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS’ AGGREGATE LIABILITY FOR DIRECT ACTUAL DAMAGES OR CLAIMS ARISING UNDER THE AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM THE CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. NEITHER LITESPACE NOR THE CLIENT WILL BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR DAMAGES FOR BUSINESS INTERRUPTION OR, LOSS OF INFORMATION) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR LITESPACE SERVICES, HOWEVER, CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1. The Client shall defend, indemnify and hold Litespace harmless from and against any and all liability, loss, expense, including reasonable legal fees, or claims for injury or damages arising out of the performance of this Agreement that is caused by or results from the negligent or intentional acts or omissions of the Client, its officers, agents, or employees.
9.2. Subject to Sections 9.3 and 9.5, Litespace shall defend the Client in any suit or cause of action, and indemnify and hold the Client harmless against any damages payable to any third party in any such suit or cause of action, alleging that Litespace Services as used in accordance with this Agreement infringes any Canadian or U.S. patent, copyright, trade secret or other proprietary rights of any third party (each an “Infringement Claim”).
9.3. Litespace shall not be responsible for the Client’s acts or omissions (including, without limitation, the amount, accuracy, timeliness of transmittal, or authorization of any entry received from the Client). The Client shall indemnify Litespace against any loss, liability, damages, costs, or expenses (including legal fees and costs) resulting from or arising out of the Client’s performance or failure to perform its obligations under this Agreement.
9.4. Subject to Sections 9.3 and 9.5, each party shall defend the other party and its officers, agents, and employees against any third-party claim, demand, suit, or proceeding made or brought by a third party, arising out of or caused by the breach or alleged breach by the indemnifying party of its representations, warranties and obligations contained in this Agreement (a “Breach Claim”, together with the Infringement Claim, “Claims” and each a “Claim”). The indemnifying party shall indemnify the indemnified party for any damages, legal fees, and costs finally awarded as a result of, or any amounts paid under a court-approved settlement of, a Claim against such party; provided that the indemnified party
9.5. Notwithstanding the provisions of this Section 9, Litespace will have no liability to the extent that any such Claim would have been avoided but for
9.6. In the event that any Service or deliverable is, or is likely to be, infringing, Litespace, at its option and expense, may either
9.7. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
11.1. Independent Contractor Status.
Litespace is an independent contractor and is not a joint venturer, employee, agent, or partner of the Client. Neither party will have the right to obligate or bind the other party in any manner whatsoever.
11.2. Force majeure.
If any party fails to perform its obligations under this Agreement as a result of acts of God, labor disputes, strikes, actions of governmental authority, acts of terrorism, wars, judicial orders, or other causes beyond the reasonable control of the party obligated to perform, then that party’s performance shall be excused. In the event of force majeure, each party shall compensate the other party for non-cancelable and other direct, out-of-pocket expenses incurred on such party’s behalf.
11.3. Notice
Notice pursuant to this Agreement shall be in writing to the above addresses specified in a Sales Order or to such other address that either party may later designate to the other in accordance with this section. Notice shall be effective on the date sent by fax or e-mail or delivered personally, or three days after the date of deposit with the Canada Postal Service or United States Postal Service, certified mail, return receipt requested.
11.4. Assignment.
The Client may not assign this Agreement, or any part thereof, without the written consent of Litespace, which consent or refusal to consent shall be in the sole and absolute discretion of Litespace and may be granted or withheld without any reason given.
11.5. No Third-Party Beneficiaries; No Affiliate Use.
Except as stated in this Agreement, Litespace and the Client intend that this Agreement will not benefit or create any right or cause of action in or on behalf of any person or entity other than the parties. In addition, the Client’s affiliates are not entitled to use the Services under this Agreement and all affiliates must execute their own separate agreement with Litespace.
11.6. Set-Off.
If this Agreement is terminated for any reason and at the time of such termination the Client has outstanding service fees or other amounts of any kind owing to Litespace for any services of any kind (due to non-sufficient funds on a defaulted payroll or otherwise), Litespace shall be entitled to apply any funds held on the Client’s behalf in the account described in the applicable Sales Order(s) to settle such outstanding fees.
11.7. Legal Fees and Cost.
In the event of any dispute arising out of the subject matter of this Agreement, the prevailing party shall recover, in addition to any other damages assessed, its reasonable legal fees and costs incurred in litigating, arbitrating, or otherwise settling or resolving such dispute whether or not an action is brought or prosecuted to judgment.
11.8. Modification and Waiver.
No modification of this Agreement or any Sales Order is effective unless signed by Litespace and the Client, and no waiver of any breach of this Agreement or any Sales Order will be effective unless in writing and signed by an authorized representative of the non-breaching Party. No waiver of any breach of this Agreement or any Sales Order, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of this Agreement or any Sales Order.
11.9. Severability.
In the event, any portion of this Agreement is declared illegal, unenforceable, invalid, or void by a court of competent jurisdiction, such portion shall be severed from this Agreement, and the remaining provisions shall remain in full force and effect.
11.10. Integration.
This Agreement, including any and all exhibits, attachments, and appendices, constitutes the entire understanding and agreement between the parties as to all matters contained herein and supersedes any and all prior agreements, representations, and understandings of the parties.
11.11. Counterparts.
This Agreement may be executed in two or more counterparts, which may be transmitted via facsimile or electronically, each of which shall be deemed an original and all of which together shall constitute one instrument.
11.12. Governing Law.
This Agreement shall be governed by British Columbia law and controlling Canada law, without regard to the choice or conflicts of law provisions of any jurisdiction, or the United Nations Convention on the International Sale of Goods, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the province and federal courts located in British Columbia, Canada.
11.13. Arbitration.
Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either the Client or Litespace has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between the Client and Litespace, then such Legal Claim will be settled by an individual (not a class or class-wide), confidential, binding arbitration administered by the Canadian Arbitration Association (“CAA”) in accordance with the then-current Arbitration Rules of the CAA (the “CAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the CAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the CAA Rules. Arbitration hearings will be held in Toronto, Ontario, or any other location that is mutually agreed upon by the Client and Litespace. A single arbitrator will be mutually selected by Litespace and the Client and shall be (i) a practicing lawyer licensed to practice law in British Columbia or a retired judge; and (ii) selected from the arbitrators on the CAA’s roster of commercial dispute arbitrators who have a background in payroll, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the CAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Litespace and the Client cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the CAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable legal fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon the Client and Litespace. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Litespace may, in its sole discretion, commence an action in any province or federal court of competent jurisdiction within the City of Toronto, Ontario, for any monetary amounts that the Client owes to Litespace (each, an “Action”). The Client hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Litespace in such courts.
The Client and Litespace agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the CAA Arbitration Rules shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. THE CLIENT FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT THE CLIENT AND LITESPAEC ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT THE CLIENT IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
11.14. Additional Documentation.
In order for Litespace to perform the Services, it may be necessary for the Client to execute and deliver additional documents (such as reporting agent authorization, client account agreement, limited powers of attorney, etc.) and the Client agrees to execute and deliver such additional documents.
11.15. Regulatory Notice.
No provincial, state, territorial, or federal agency monitors or assumes any responsibility for the financial solvency of third-party tax filers.
11.16. Use of Agents
Litespace may designate any agent or subcontractor to perform such tasks and functions to complete any Services covered under this Agreement. However, nothing in the preceding sentence shall relieve Litespace from responsibility for the performance of its duties under the terms of this Agreement.
11.17. Entire Understanding.
This Agreement constitutes the exclusive and entire agreement between the parties with respect to its subject matter, and as of the Effective Date, supersedes all prior or contemporaneous agreements, negotiations, representations, and proposals of any kind, whether written or oral, either express or implied, relating to this subject matter. This Agreement includes and integrates any properly executed attachments, including the exhibits and any Sales Order or Additional Service Terms.
Litespace provides an electronic signature service (the “Electronic Signature Service”) that allows parties to sign documents electronically. Each time that the Client uses the Electronic Signature Service, the Client is expressly (i) affirming that the Client is able to access and view the document (the “Document”) and that the Client is electronically signing via the Electronic Signature Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
While many users prefer the convenience of electronic signatures, using the Electronic Signature Service to electronically sign Documents is optional, and the Client can choose to manually sign Documents if the Client prefers. If the Client would like to manually sign a Document, the Client should (i) inform the party that sent the Client the Document of the Client’s decision to manually sign such Document; (ii) make sure that the Client does not electronically sign the Document via the Electronic Signature Service; and (iii) obtain a physical copy of the Document for the Client to sign. Obtaining a physical, non-electronic copy of the Document is the Client’s sole responsibility, and Litespace has no responsibility or liability with respect to such matter.
Litespace has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
Litespace makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE PROVINCIAL, STATE, AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS THE CLIENT’S RESPONSIBILITY TO CONSULT WITH A LAWYER OR AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE ELECTRONIC SIGNATURE SERVICE.
