BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THESE TERMS, USING (OR MAKING ANY PAYMENT FOR) THE PLATFORM OR ANY PORTION THEREOF, OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE TERMS, YOU: (A) HEREBY AGREE TO THESE TERMS ON BEHALF OF THE ORGANIZATION, COMPANY OR OTHER LEGAL ENTITY FOR WHICH YOU ACT; AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUBSCRIBER AND ITS AFFILIATES TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT ACCESS OR USE THE PLATFORM.
1.1 “Documentation” means Canoa-provided user documentation, in all forms, relating to the Platform (e.g., user manuals, on-line help files).
1.2 “Platform” means Canoa’s digital e-commerce platform available at www.canoa.supply, including all data, scans, calculations, filters, source and object code, designs, information, videos, photographs, software, text, graphics, images, sound recordings, and other material provided on the Platform.
1.3 “Subscriber Data” means, without limitation, any information, data, plans, sketches, texts, files, images, photos, video, or other materials provided, imported or uploaded to, generated, or otherwise used by Subscriber or on Subscriber’s behalf on the Platform or provided to Canoa.
1.4 “Users” means Subscriber’s employees or contractors who are authorized to use the Platform.
2. USE OF THE PLATFORM
2.1 Use of the Platform. The Canoa Platform is a business-to-business e-commerce platform that enables Subscribers to design, track and purchase commercial furnishings for their physical spaces. Canoa grants to Subscriber a limited, worldwide, non-exclusive, non-transferable right during the term of the Terms to use the Platform and Documentation in accordance with the license granted in the Terms. Subscriber may reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Platform in accordance with the Terms.
2.2 Third Party Terms. In order to use the Platform, you may be required to agree, or you may have already agreed, to third-party terms unrelated to Canoa. Unless otherwise expressly stated therein, Canoa is not a party to such third-party terms and disclaims all responsibility and liability for such third-party terms. Such third-party terms are solely between you and such third parties.
2.3 Technical Support Services and Training. Canoa will provide Subscriber with technical support relating to the Platform. Subscriber may submit requests or questions to Canoa by email at [email protected] from 9am to 5pm Eastern Time, Monday through Friday, excluding holidays.
2.4 Use Restrictions. Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Platform or Documentation; (b) use the Platform to provide retail services to third parties; nor (c) circumvent or disable any security or other technological features or measures of the Platform.
2.5 Compliance with Laws. Subscriber will use the Platform and Documentation in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that may damage the reputation of Canoa or the Platform.
2.6 Usernames and Passwords. Canoa may provide each User (or allow each User to specify) a unique username and password to enable such User to access the Platform. Subscriber is responsible for maintaining the confidentiality of all Users’ usernames and passwords, and is solely responsible for all activities that occur under these usernames. Subscriber agrees (a) not to allow a third party to use Subscriber’s account, usernames or passwords at any time; and (b) to notify Canoa promptly of any actual or suspected unauthorized use of Subscriber’s account, usernames or passwords, or any other breach or suspected breach of these Terms. Canoa reserves the right to terminate any username and password, which Canoa reasonably determines may have been used by an unauthorized third party.
2.7 Protection against Unauthorized Use. Subscriber will prevent unauthorized use of the Platform and Documentation and will promptly notify Canoa of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Platform through Subscriber, Subscriber will take reasonable steps to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Canoa to prevent or terminate unauthorized use of the Platform or Documentation.
2.8 Reservation of Rights. Subscriber will not have any rights to the Platform or Documentation except as expressly granted in these Terms. Canoa reserves to itself all rights to the Platform and Documentation not expressly granted to Subscriber in accordance with these Terms.
2.9 Additional Terms. Certain features of or services offered through the Platform may be subject to additional terms and conditions, such as the Marketplace Goods and Services Agreement (“Additional Terms”). By using or accessing any such features, Subscriber agrees to the Additional Terms applicable to such features, and such Additional Terms are hereby incorporated by reference into these Terms. In the event of any conflict or inconsistency between these Terms and any Additional Terms, the Additional Terms will control, but only with respect to the features of the Platform to which they apply.
3.1 Pricing. Certain features of the Platform may require Subscriber to pay fees. Before Subscriber pays any fees, Subscriber will have an opportunity to review and accept the fees that Subscriber will be charged. All fees are in U.S. Dollars and are non-refundable unless otherwise specifically provided for in these Terms. Canoa reserves the right to determine pricing for the Platform. Canoa will make reasonable efforts to keep pricing information published on the Platform up to date. Canoa may change the fees for any feature of the Platform on a going forward basis, including additional fees or charges, if Canoa gives Subscriber advance written notice of such changes before they apply. Canoa, at its sole discretion, may make promotional offers with different features and different pricing to any of Canoa’s Subscribers. These promotional offers, unless made to Subscriber, will not apply to Subscriber or these Terms.
3.2 Taxes. Subscriber is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to any amounts paid or payable in connection with Subscriber’s use of the Platform, whether domestic or foreign (“Taxes”), other than Canoa’s income tax. All fees are exclusive of Taxes.
3.3 Authorization. Subscriber authorizes Canoa and its third party payment processors to charge all sums for the orders that Subscribers makes in connection with the Platform, as described in these Terms or published by Canoa, including all applicable Taxes, to the payment method specified in Subscriber’s account. If Subscriber pays any fees with a credit card, then Canoa may seek pre-authorization of the credit card account prior to Subscriber’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Subscriber’s purchase.
4. TERM AND TERMINATION
4.1 Term. These Terms will be effective on the Effective Date. The subscription term will be for either one year or one month, depending on the package purchased, and will automatically renew on the anniversary of the purchase unless until terminated in accordance with these Terms.
4.2 Termination. Either party may terminate these Terms (including, in the case of Canoa as the terminating party, on a Platform feature-by-Platform feature or service-by-service basis) if the other party (a) fails to cure a material breach of these Terms (including a failure to pay fees) within 10 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days. Either party may terminate these Terms (including, in the case of Canoa as the terminating party, on a Platform feature-by-Platform feature or service-by-service basis) upon 30 days’ prior written notice.
4.3 Effect of Termination. Upon termination of these Terms, Subscriber’s access to, and right to access, the Platform will cease. At the disclosing party’s request upon expiration or termination of these Terms, the receiving party will delete all of the disclosing party’s Confidential Information. Subscriber Data and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to these Terms’ confidentiality restrictions.
4.4 Survival. These Sections survive expiration or termination of these Terms: 2.4, 3, 4.3, 5, 6, 7, 8, 11, 13, and 14. Except where an exclusive remedy is provided, exercising a remedy under these Terms, including termination, does not limit other remedies a party may have.
5. WARRANTIES AND DISCLAIMER
5.1 Canoa Warranties. Canoa represents and warrants that: (a) the Platform will materially conform to the specifications and requirements set forth in these Terms; and (b) it shall comply with all applicable laws and regulations in its performance of these Terms.
5.2 Subscriber Warranties. Subscriber represents and warrants that the Subscriber Data shall not (a) infringe any intellectual property or proprietary rights of any third party; (b) misappropriate any trade secret; (c) contain any viruses, worms or other malicious computer programming codes able to damage the Platform or any systems that provide the Platform; (d) otherwise violate the rights of a third party; or (e) violate any applicable law.
5.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 5, CANOA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. CANOA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. CANOA DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PLATFORM. CANOA DOES NOT WARRANT THAT THE PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE PLATFORM WILL BE SECURE OR UNINTERRUPTED. CANOA EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE SUBSCRIBER’S USE OF THE PLATFORM.
6. INTELLECTUAL PROPERTY INFRINGEMENT
6.1 Infringement Defense. Canoa will defend Subscriber from any third party claim that the Platform infringes or misappropriates any U.S. patent issued as of the Effective Date or any copyright or trade secret of any third party during the term of these Terms if: (a) Subscriber gives Canoa prompt written notice of the claim; (b) Canoa has full and complete control over the defense and settlement of the claim; (c) Subscriber provides assistance in connection with the defense and settlement of the claim as Canoa may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
6.2 Infringement Indemnification. Canoa will indemnify Subscriber against: (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any proceeding under Section 6.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Canoa’s consent after Canoa has accepted defense of such claim); and (c) if any proceeding arising under Section 6.1 is settled, all amounts paid to any third party as agreed to by Canoa in settlement of any such claims.
6.3 Mitigation of Infringement Action. If Subscriber’s use of the Platform is, or in Canoa’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 6.1, then Canoa will either: (a) procure the continuing right of Subscriber to use the Platform; (b) replace or modify the Platform in a functionally equivalent manner so that it no longer infringes; or (c) terminate the licenses with respect to the Platform subject to the infringement claim and refund to Subscriber all unused platform fees pre-paid by Subscriber.
6.4 Exclusions. Canoa will have no obligation under this Section 6 for any infringement arises out of or is based upon: (a) the combination, operation, or use of the Platform with a third party product or service if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Platform required by or provided by Subscriber; (c) use of the Platform outside of the scope of the license granted to the Subscriber; (d) Subscriber’s failure to use the latest release of the Platform or to comply with instructions provided by Canoa; (e) any modification of the Platform not made by Canoa; or (f) unauthorized use of the Platform.
6.5 Exclusive Remedy. This Section 6 states Canoa’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the Platform.
7. SUBSCRIBER INDEMNIFICATION
7.1 Defense. Subscriber will defend Canoa from any actual or threatened third party claim arising out of or based upon Subscriber’s use of the Platform, Subscriber's breach of any of the provisions of the Terms, or an allegation that the Subscriber Data infringes any third party intellectual property or proprietary rights. Canoa will: (a) give Subscriber prompt written notice of the claim; (b) grant Subscriber full and complete control over the defense and settlement of the claim (so long as the settlement releases Canoa of all claims and does not include an unconsented to admission of fault by Canoa); (c) assist Subscriber with the defense and settlement of the claim as Subscriber may reasonably request and at Subscriber’s expense; and (d) comply with any settlement or court order made in connection with the claim.
7.2 Indemnification. Subscriber will indemnify Canoa against: (a) all damages, costs, and attorneys’ fees finally awarded against Canoa in any proceeding under Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Canoa in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of such claim); and (c) if any proceeding arising under Section 7.1 is settled, Subscriber will pay any amounts to any third party agreed to by Subscriber in settlement of any such claims.
8. SUBSCRIBER DATA
8.1 License to Subscriber Data. As between the parties, Subscriber retains all rights, title and interest in and to the Subscriber Data. Canoa collects information and data on how the Platform is used by Subscribers and reserves the right to disclose to and share such information and data with third parties in an anonymous and aggregated form at its discretion. Subscriber agrees that Canoa may, on a worldwide, irrevocable, royalty-free basis, (a) use and exploit in any manner Subscriber Data during the term in order to provide the Platform and to perform its obligations hereunder; (b) use and exploit aggregated non-personally identifiable information related to any usage of the Platform to operate, build and improve Canoa’s products and services; and (c) use and exploit suggestions, requests and feedback provided by or on behalf of Subscriber regarding the Platform or any other Canoa product or service.
8.2 Content Loss. Subscriber shall keep and maintain Subscriber’s own copy of all Subscriber Data. Canoa is not obligated to back up any Subscriber Data. Canoa reserves the right to withhold, remove and/or discard Subscriber Data, without notice, for any breach, including, without limitation, Subscriber’s non-payment. At no time, including after the termination of the Terms, will Canoa be responsible for offloading or transferring the Subscriber Data to Subscriber or any third party.
9. THIRD PARTY MATERIALS AND CONTENT. The Platform may display, include, or make available content, data, information, applications or materials from third parties or provide links to certain third-party web sites (“Third-Party Materials”). Subscriber acknowledges and agrees that Canoa is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials and Canoa expressly disclaims any responsibility for all aspects of the Third-Party Materials.
10. DESIGN TEMPLATES. Under some subscriptions, Subscriber may receive access to design templates through the Platform. Whenever not selecting from Canoa’s pre-built design templates and instead creating your own designs, you are solely responsible for confirming the availability and extent of any manufacturer’s and/or retailer’s warranty for materials sourced or obtained through the Platform and for using, installing, maintaining and repairing the materials in accordance with the terms of any such warranty and any instructions provided by the manufacturer and/or retailer.
11.1 Definition. “Confidential Information” means information disclosed to the receiving party under these Terms that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Canoa’s Confidential Information includes the terms and conditions of these Terms and any technical or performance information about the Platform.
11.2 Obligations. As the receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in these Terms and (b) only use Confidential Information to fulfill its obligations and exercise its rights in these Terms. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 11 and they are bound to confidentiality obligations no less protective than this Section 11.
11.3 Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under these Terms without an accompanying obligation of confidentiality, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using or referencing the disclosing party’s Confidential Information.
11.4 Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 11.
12. MODIFICATIONS. We may from time to time in our sole discretion develop and provide updates to the Platform, change the Platform, restrict access to the Platform, and we reserve the right to do so in our sole discretion without notice. Any such updates or changes will be deemed part of the Platform and subject to all terms and conditions of these Terms. We will not be liable to you or any third party for any modification, suspension or discontinuance of the Platform. In the event of modification or termination, you will still be bound by your obligations under these Terms, including the warranties made by you, and by the disclaimers and limitations of liability.
13. LIMITATIONS OF LIABILITY.
13.1 NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE. EXCEPT FOR SUBSCRIBER’S BREACH OF SECTIONS 2.4 (RESTRICTIONS), 8 (SUBSCRIBER DATA) AND SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S (AND ITS SUPPLIERS’) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED IN AGGREGATE THE PLATFORM SUBSCRIPTION FEE PAID OR PAYABLE BY SUBSCRIBER TO CANOA UNDER THESE TERMS DURING THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. THE WAIVERS AND LIMITATIONS IN THIS SECTION 13 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE.
13.2 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CANOA TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
14. GENERAL TERMS.
14.1 Assignment. Neither party may assign these Terms without the prior consent of the other party, except that Canoa may assign these Terms in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. These Terms will bind and inure to the benefit of each party’s permitted successors and assigns.
14.2 Governing Law, Jurisdiction and Venue. These Terms are governed by the laws of the State of New York and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to these Terms will be the state and United States federal courts located New York, New York, and both parties submit to the personal jurisdiction of those courts.
14.3 Notices. Except as set out in these Terms, any notice or consent under these Terms must be in writing: (i) if to Subscriber, to the then-current address Canoa has on file for Subscriber, or (ii) if to Canoa, to: 1 Dock 72 Way, Suite 08-118, Brooklyn, NY 11205. Notice will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested), (c) one day after dispatch if by a commercial overnight delivery service or (d) upon delivery if by email. Either party may update its address for notice by providing notice to the other party in accordance with this Section. Canoa may also send operational notices to Subscriber by email or through the Platform.
14.4 Entire Agreement. These Terms (including all Additional Terms) constitute the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In these Terms, headings are for convenience only and “including” and similar terms are to be construed without limitation.
14.5 Amendments. Any amendments, modifications or supplements to these Terms must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Canoa. The terms in any Subscriber order form or purchase order will not amend or modify these Terms and are expressly rejected by Canoa; any of these Subscriber documents are for administrative purposes only and have no legal effect.
14.6 Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of these Terms is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of these Terms remains in effect.
14.7 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.
14.8 Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.
14.9 Export. Subscriber agrees to comply with all relevant U.S. and foreign export and import Laws in using the Platform. Subscriber (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access or use the Platform in violation of any U.S. export embargo, prohibition or restriction and (c) will not submit to the Platform any information controlled under the U.S. International Traffic in Arms Regulations.
14.10 Government End-Users. Elements of the Platform are commercial computer software. If the user or licensee of the Platform is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Platform or any related documentation of any kind, including technical data and manuals, is restricted by these Terms in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Platform was developed fully at private expense. All other use is prohibited.