Last Updated: January 10th, 2021
Acceptance of the Terms
Description of Services
Canoa offers a suite of tools, products and services to enable end users (the “Subscribers”) to scale their physical spaces. As described in more detail on the Site, Canoa offers the following Services: (i) custom design services (“Design Services”), (ii) procurement, deployment and/or installation of materials (“Materials Services”), (iii) project consultation sessions (“Expert Hours”) and (iv) a digital platform (the “Platform”) to facilitate the provision of the foregoing Services. [Canoa is not a licensed contractor or architect.] Canoa is permitted to engage and/or use third party designers or other service providers as independent sub-contractors in connection with the Services (“Design Agents”).
In order to use the Services, you may be required to agree, or you may have already agreed, to third-party terms unrelated to the Company. Unless otherwise expressly stated therein, Company 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.
To receive certain Services, you may be required to agree to additional terms and conditions covering the specific details of particular projects, Fees, timelines, payment terms and the like. Such terms and conditions will be set out in one or more order forms (each an “Order Form”) between you and Canoa that will supplement these Terms. Each Order Form shall be incorporated into these Terms by reference subject to these Terms, but if there is any conflict between these Terms and any Order Form, the Order Form shall control.
The Design Services include both generation of custom design plans for physical spaces and related digital content. You acknowledge and understand that the custom designs created by us as part of the Design Services are computer generated estimates of your desired outcome, as explained to us by you. We do not guarantee or take responsibility that the final outcome of your project will exactly be the same as design estimates that we create and provide to you. Variations between the design estimate and the final outcome may occur due to a number of reasons beyond our control.
Materials for any projects may be procured, on your behalf, by us or a third party you select from the Services or you may choose to purchase the materials directly from outside sources of your choice. In the event that we procure the materials on your behalf, we will charge the cost of materials, transportation costs (including without limitation shipping, packaging, and customs costs) and any bank or payment processing fees that we may have incurred on the purchase.
You acknowledge that any materials we may provide or supply are manufactured by others and are not warranted by us in any manner. Such materials may be subject to product warranties, if any, provided by their respective manufacturers and/or the retailers that sell them. To the maximum extent permitted by law, we hereby disclaim any representations and warranties, express or implied, applicable to any materials including any warranty of title, merchantability, habitability, fitness for a particular purpose or non-infringement.
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 Services 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. If you discover a defect or deficiency in any materials sourced or obtained through the Services, you are responsible for contacting the manufacturer and/or the retailer directly. You hereby expressly agree and acknowledge that Canoa will not be liable for any claims for direct, indirect, consequential, incidental, or special damages, including lost profits or revenues, arising out of or in any way connected with a manufacturer’s or retailer’s breach or failure to honor warranty and/or any failure, delay in use or performance of material or acts or omission of you and/or any third party working on your behalf rendering the manufacturer’s and/or retailer’s warranty void.
You are responsible for ensuring that any material you purchase directly is permitted to be installed as part of your project and to be subsequently used, by the applicable federal, city, state and municipal laws and regulations. Canoa is not responsible if the completion of your project is delayed due to your failure to adhere to such laws and regulations, including without limitation to identify, obtain, or maintain necessary licenses, approvals, permits, or registrations.
While you can choose to hire any third-party contractor for a project for which you have engaged Canoa to provide Materials Services, Canoa and any Design Agents will not be responsible in any manner whatsoever for the co-ordination, performance, safety or efficiency of such third-party contractors in relation to the project or otherwise.
Through Expert Hours, Subscribers purchase packages of consultation hours with Canoa and/or Design Agent experts. Consultations may occur virtually and/or on-site at your premises. Expert Hours must be purchased in fixed increments set by Canoa in its sole discretion and are non-refundable. You acknowledge and agree that Canoa may engage Design Agents to provide some or all of the Expert Hours purchased by a Subscriber, depending on the nature of Subscriber’s project.
When engaging Canoa to provide the Design Services, Materials Services and/or Expert Services, you will also have access to the Platform. The Platform may contain material such as data, scans, calculations, filters, source and object code, designs, information, videos, photographs, software, text, graphics, images, sound recordings, and other material provided by or on behalf of Company (collectively referred to as the “Platform Content”). The Platform Content may be owned by us or third parties and is protected under intellectual property laws, as set forth in more detail below.
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“Subscriber Content”) that you upload, post, publish or display on the Platform or otherwise provide to Canoa via the Services. You retain sole ownership of any Subscriber Content, as set forth in further detail in Section 13 below. At no time, including after the termination of any agreement between you and Canoa, will Canoa be responsible for offloading or transferring the Subscriber Content to you or any third party.
We reserve the right to update and revise these Terms at any time. We’ll notify you in writing of any such updates and make sure to also change the “Last Updated” date at the top of this page so you can tell if these Terms have changed since your last visit. Any such changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. If you disagree with the revised Terms, your sole recourse is to stop using the Services, subject to any termination obligations that you may have (including as set forth in an Order Form). Once we notify you of and post any changes, your continued use of the Services constitutes your acceptance of the revised Terms.
To access our Services, including the Platform, you may be required to register with the Site and create a user account (“Account”). If you create an Account, you are solely responsible for any activity that occurs through your Account. In order for us to provide you the best possible service, you agree to provide us with complete, accurate, and updated information for your Account at all times. You agree that all information that you submit upon creation of your Account is accurate and truthful and you have the right to post the content on the Platform. If any information is incorrect or outdated, it can lead to errors or delays, for which we will not be responsible.
You should not share your Account information. You should not use another person’s Account or registration information for the Services without permission. Similarly, no one else should be able to use your Account without permission. You are solely responsible for keeping your Account and Account password secure and for any consequence resulting from your failure to do so. You should never publish, distribute, or post login information for your Account.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms. Canoa will not be liable for any loss or damage arising from any kind of unauthorized activity that takes place under your Account. You also agree to inform Canoa promptly if you have a reason to suspect unauthorized access or use of your Account. Should you authorize a third person to operate your Account and/or share your Account details with any third person, you agree to be: (a) bound by all acts done and contract(s) entered into by such person on your behalf; and (b) responsible for all actions taken by such person and any financial or service obligations arising therefrom.
Access to Services
By accessing the Services, you warrant that:
Fees: Payment Processer
In consideration of the Services to be performed by Canoa, you will pay to Canoa fees in the amounts and according to the payment schedule set forth in the Order Form, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule (each a “Fee”, collectively, “Fees”). If you are exempt from taxes, you must provide Canoa copies of exemption certificates. Any and all outside costs and expenses will be billed to you, with your prior written consent to such additional costs, unless specifically otherwise provided for in an Order Form.
You represent and warrant that payment information provided to Canoa is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
Canoa may choose to bill through an invoice, in which case, full payment for invoices issued must be received pursuant to the agreed upon payment terms, which shall be set forth in the applicable Order Form, or the Services may be terminated by Company. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses (including legal fees) of collection. All grants of any license to use or transfer of ownership of any intellectual property rights under these Terms are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding additional costs, taxes, expenses, and fees, charges, or the costs of changes.
In the course of your use of the Services, third party payment service providers may receive and implement updated credit card information from your credit card issuer in order to prevent your payment from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided to third party payment service providers at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt-out of the update service. Should you desire to do so, please contact your credit card issuer.
Our obligation to provide the Services only comes into being when we take receipt of your purchase of the Services. You agree not to hold us responsible for banking charges incurred due to payments on your account. You agree that you are not permitted to resell any Services for commercial purposes.
Changing Fees and Charges
We may at any time and from time to time, in our sole discretion, change the fees and charges, or add new fees and charges, in relation to any of the Services. We may also at any time and from time to time, in our sole discretion, change or remove any of the pricing models in place.
Eligibility; Site and Service Restrictions
We only permit individuals who are at least 18 years old, or the age of majority in your province, territory or country, and who can form legally binding contracts with us to use the Services. If you are a Minor, please do not attempt to access or use the Services.
You can only use or receive the Services to the extent the laws of your jurisdiction or the United States do not bar you from doing so. Please make sure these Terms are in compliance with all laws, rules and regulations that apply to you. You are solely responsible for ensuring compliance with the laws of your specific jurisdiction. Canoa does not make any representation that the Services, Site or Platform are appropriate or available for use outside of United States.
Use of the Services; Restrictions on Use
We may from time to time in our sole discretion develop and provide updates to the Services, change the Services, restrict access to the Services (including to Subscribers) or withdraw or terminate the Services entirely, 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 Services 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 Services. 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.
You may only use the Services as explicitly authorized and in compliance with any policies made available to you within the Services. You may not use such proprietary information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. Without limiting the foregoing, you may not do any of the following while accessing or using the Services: Express or imply that any statements you make are endorsed by Canoa;
Scrape the Services or use other automated or manual means to take our content without our express prior written consent;
Modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the contents of the Services not intended to be so read;
Take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our or our third-party providers’ infrastructure;
Interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
Bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services, including without limitation other accounts, computer systems or networks connected to the Services;
Run any form of auto-responder or “spam” on the Services;
Access or use the Services for any illegal or unauthorized purpose, including to harass, abuse, defame or otherwise infringe or violate the rights of any other party; or
Otherwise take any action in violation of these Terms.
You acknowledge that Canoa may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content (including Subscriber Content) will be retained by the Services and the maximum storage space that will be allotted on Canoa’s servers on your behalf. You agree that Canoa has no responsibility or liability for the deletion or failure to store any data or other content maintained by or uploaded to the Services, Site or Platform. You acknowledge that Canoa reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Canoa reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Third Party Materials and Content
You understand that the Services and Deliverables 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”).
You acknowledge and agree that the Company 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. We expressly disclaim any responsibility for all aspects of the Third Party Materials and you further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services in connection with any Third Party Materials. You further agree and acknowledge that your use and/or access of such third-party websites is governed by terms and conditions of use and privacy policies of such websites. Mere presence of such links on the Site or Platform does not in any manner imply or constitute Canoa’s endorsement of, or association with such websites. You are responsible for independently evaluating the content of such websites and/or the suitability or usefulness of the products or services offered by such websites.
Use of any third-party trademarks or third-party content on or in connection with the Services does not constitute affiliation with or endorsement of these third parties. Nothing in these Terms grants you any license to third-party trademarks or content, which shall remain the property of their respective owners.
Work Orders; Acceptance
Unless otherwise provided in the Order Form, and except as otherwise provided for herein, you shall pay additional charges for changes to a project that you request which are outside the scope of an Order Form on a time and materials basis. Such charges shall be in addition to all other amounts payable under the Order Form, despite any maximum budget, contract price or final price identified therein. Canoa may extend or modify any delivery schedule or deadlines in the Order Form and Deliverables as may be required by such changes.
If you request or instruct substantial material changes to the Services under an Order Form, as determined by the Canoa in its sole discretion, Canoa shall be entitled to submit a new and separate Order Form to you for written approval (not to be unreasonably withheld). Work shall not begin on the revised services until you fully execute the revised Order Form and, if required, any additional retainer fees are received by Canoa.
Canoa will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Order Form. If applicable, you agree to review Deliverables within the time identified for such reviews and to reasonably promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify your concerns, objections or corrections to Canoa. Canoa shall be entitled to request written clarification of any concern, objection or correction. You acknowledge and agree that Company’s ability to meet any and all schedules is entirely dependent upon your prompt performance of your obligations to provide materials and written approvals and/or instructions pursuant to the Order Form and that any delays in your performance or changes in the Services or Deliverables requested by you may delay delivery of the Deliverables. Any such delay caused by you shall not constitute a breach of any term, condition or Company’s obligations under these Terms or an Order Form.
Canoa will exercise commercially reasonable efforts to make all necessary corrections to Deliverables prior to providing Deliverables to you. You, within five (5) business days of receipt of each Deliverable, must notify Canoa, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Order Form, or of any other objections, corrections, changes or amendments you wish made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Canoa will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of these Terms. In the absence of such notice from you, the Deliverable shall be deemed accepted.
Subscriber Content shall remain your sole property. You hereby grants to Canoa a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license (i) use, distribute, reproduce, modify, display and publish the Subscriber Content in connection with Canoa’s performance of the Services and (ii) use the Subscriber Content and Subscriber’s logo, name, and trademarks for Canoa’s promotional and marketing purposes.
Except as otherwise expressly granted to you in these Terms, we reserve and retain all right, title and interest in the Services, including without limitation, all Preliminary Works, Work Product, Deliverables, Company Tools, Platform Content, technology and processes, enhancements or modifications thereto, trademarks, service marks, site design, drawings, CAD files, text, video, graphics, logos, images and icons, as well as the arrangement thereof; provided that upon payment of all Fees for the Deliverables, Canoa shall grant you a nonexclusive, perpetual, paid-up, royalty-free right and license to the Deliverables and the Company Tools, solely to use the Deliverables. You acknowledge that the Services contain proprietary content, information and material protected by applicable intellectual property and other laws, including but not limited to copyright and trademark laws, and you agree that, except with our prior written consent or as explicitly provided in these Terms, using the Services does not (1) give you any ownership of any intellectual property rights in our Services or (2) grant you the right to display, modify, reproduce, distribute, create derivative works of, download, store, transmit or otherwise use any of our intellectual property, except as expressly set forth herein. Any unauthorized use of any content or materials on the Services is strictly prohibited and violates copyright, trademark, and/or other intellectual property laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.
You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, data or materials in the Services. If you make other use of the Services, or the content, data or materials thereon, except as otherwise provided, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use.
You acknowledge and agree that you do not acquire any ownership interest in the Services under these Terms, or any other rights thereto other than to use the Services, Deliverables and Company Tools in accordance with the license granted herein. Appropriate legal action may be taken for any illegal or unauthorized use of the Services.
As used herein and throughout these Terms:
“Work Product” means the services and work product specified in the Order Form to be delivered by Canoa to you, in the form and media specified in the Order Form, and all other writings, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, and materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, modified, conceived, or reduced to practice by or on behalf of Canoa solely or jointly with others, including Third Party Materials, in the course of performing the Services.
“Company Tools” means all design tools, ideas, and frameworks developed and/or utilized by Canoa in performing the Services (including as may be developed by Canoa in the course of providing the Services), the general feel of the Canoa’s design aesthetic, design elements or characteristics commonly used by Canoa in its design and work for its customers and clients, pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, and all intellectual property rights therein.
“Deliverables” means the final versions of the Work Product provided by Canoa, delivered to and fully paid for by you.
“Preliminary Works” means all designs, specifications, and other products including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Canoa and which may or may not be shown and or delivered to you for consideration but do not form part of the Deliverable.
As used herein, “Confidential Information” shall mean all information relating, directly or indirectly, to the disclosing party (the “Disclosing Party”), or the business, services, products, product line operations, strategies, markets, condition (financial or other), operations, or intellectual property of the Disclosing Party or any of its affiliates, provided by the Disclosing Party to the other party (the “Recipient”), including but not limited to trade secrets, patent and patent applications, ideas, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, equipment, software programs, information related to current, future and proposed products and services, research, experimental work, acquisitions, financing transactions, partnerships, development, design details and specifications, financial information, results of operations, liabilities, cash flow projections, procurement requirements, purchasing, manufacturing, customer or Subscriber lists (current and anticipated), investors, employees, business and contractual relationships, business forecasts, sales and merchandising, and public relations and marketing plans.
In connection with the Services, the Recipient agrees to (i) to hold the Disclosing Party’s Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Recipient employs with respect to its confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person other than to those of its affiliates, officers, employees, and representatives who are bound by these Terms or nondisclosure obligations at least as restrictive as those contained herein (the “Representatives”), (iii) not to make any use whatsoever at any time of such Confidential Information except to evaluate internally its relationship with the Disclosing Party and, to the extent an actual business relationship arises, solely to the extent agreed to in writing by the parties, (iv) not to modify, reverse engineer, decompile, create other works from, disassemble or copy any such Confidential Information and (v) not to export or re-export (within the meaning of U.S. or other export control laws or regulations) any such Confidential Information or product thereof. Each party shall be responsible for any breach of confidentiality by its Representatives. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Recipient can document (a) is or becomes (through no improper action or inaction by the Recipient or any Representative of the Recipient) generally available to the public, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party without restriction, or (d) was independently developed without use of any Confidential Information of the Disclosing Party by employees of the Recipient who have had no access to such information. The Recipient may make disclosures required by law or court order provided the Recipient uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate in the proceeding. The Recipient’s confidentiality and nondisclosure obligations under these Terms shall survive termination of the parties relationship and shall be binding upon the Recipient’s heirs, successors and permitted assigns.
You agree and acknowledges that Canoa is not an insurance company and does not insure your premises or you against physical loss or damage or any bodily injury caused by Canoa, Design Agents or other third parties engaged by Canoa to provide the Services.
You represent and warrant that you have and will maintain adequate insurance coverage for your premises from a reputable insurance provider (“Subscriber’s Insurance Policy”) for the duration of any project that involves the deployment of Services in or at your premises. You agree and acknowledge that in case of physical loss or physical damage to your premises or any personal or other property at the premises or any bodily injury caused by Canoa or a third-party involved in providing the Services, you will make a claim against the Subscriber’s Insurance Policy.
Term and Termination
Except as otherwise expressly provided in an Order Form, you agree that Canoa, in its sole discretion, may suspend or terminate your Account (or any part thereof) or use of the Services and remove and discard any Subscriber Content within the Services, for any reason, including, without limitation, for lack of use or if Canoa believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, unsafe, abusive or illegal activity that may be grounds for termination of your use of Services may be referred to appropriate law enforcement authorities. Canoa may also in its sole discretion and at any time discontinue providing the Services, or any part thereof, with or without notice. Further, you agree that Canoa will not be liable to you or any third party for any termination of your access to the Services. All sections of these Terms that should by their nature survive termination shall so survive.
Relationship of the Parties
Canoa is an independent contractor, not an employee of Subscriber or any company affiliated with Subscriber. Canoa shall provide the Services under the general direction of Subscriber, but shall determine, in Canoa’s sole discretion, the manner and means by which the Services are accomplished. These Terms do not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in these Terms. Canoa and the Deliverables prepared by Canoa shall not be deemed a work for hire as that term is defined under Section 101 of the United States Copyright Law. All rights, if any, granted to Subscriber are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of these Terms.
Representations and Warranties; Your Responsibilities
You represent and warrant that (i) you own all right, title, and interest in, or otherwise have full right and authority to permit the use of the Subscriber Content, (ii) the Subscriber Content does not infringe the rights of any third party, and use of the Subscriber Content in connection with the Services does not and will not violate the rights of any third parties, (iii) you shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (iv) you shall comply with all laws and regulations as they relate to the Services and Deliverables.
You acknowledge that you are responsible for performing the following in a reasonable and timely manner: (i) coordination of any decision-making with parties other than the Canoa and (ii) provision of Subscriber Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Order Form. You further acknowledge and agree that you are solely responsible for (a) maintaining a safe environment for conducting Services at your premises; and (b) complying with all federal, state, city, and municipal laws related to Services carried out at your premises.
Canoa represents and warrants that it will provide the Services identified in any Order Form (i) in a professional and workmanlike manner and in accordance with commercially reasonable standards for such services, (ii) that, except for Third Party Materials and Subscriber Content, the Deliverables shall be the original work of Canoa, Design Agents or other independent contractors, and (iii) to the best of Canoa’s knowledge, the Deliverables do not infringe the rights of any party, and use of same in connection with the Services will not violate the rights of any third parties. In the event that you or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the applicable Order Form or these Terms or contrary to the terms and conditions noted herein, all representations and warranties of Canoa shall be void.
Warranty Disclaimers; Limitation of Liability
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES, DELIVERABLES OR ANY CONTENT ON THE SERVICES, WHETHER PROVIDED OR OWNED BY THE COMPANY OR BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND DELIVERABLES AND THE COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT ANY OF THE SERVICES, DELIVERABLES OR ANY CONTENT AVAILABLE THROUGH ANY OF THE SERVICES IS ACCURATE, COMPLETE, AVAILABLE, CURRENT, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DEFECTS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
IN NO EVENT WHATSOEVER SHALL THE COMPANY, AFFILIATES, OR SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, PROFIT, REVENUE, GOODWILL, OR DOWNTIME, (ARISING UNDER TORT, CONTRACT, OR OTHER LAW) REGARDLESS OF SUCH PARTY’S NEGLIGENCE OR WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND AGREE THAT THE DOWNLOAD OF ANY MATERIALS IN CONNECTION WITH THE SERVICES IS DONE AT YOUR DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY MATERIAL. COMPANY NEITHER ASSUMES, NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF THE SERVICES. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS, COMPANY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES OR DELIVERABLES, COMPANY’S LIABILITY SHALL IN NO EVENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO COMPANY FOR THE SERVICES SOLD HEREUNDER.
THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY ARE MADE TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT APPLICABLE, YOU WAIVE CALIFORNIA CIVIL CODE §1542, OR ANY SIMILAR LAW, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Services or your use of any information obtained through the Services.
No matter where you’re located, the laws of the state of New York will govern these Terms and the relationship between you and the Company as if you signed these Terms in New York, without regard to New York state’s conflicts of laws rules. If any provisions of these Terms are inconsistent with any applicable law, those provisions will be superseded and/or modified only to the extent such provisions are inconsistent. The parties agree to submit to the federal or state courts in New York for exclusive jurisdiction of any dispute arising out of or related to your use of the Services or your breach of these Terms.
At our sole discretion, we may require you to submit any disputes arising from these Terms, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Commercial Rules of Arbitration of the American Arbitration Association. The arbitration shall be seated in New York, New York.
If it turns out that any part of these Terms is invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms.
These Terms (including any Exhibits linked hereto and other writings incorporated herein by reference) constitute the entire agreement between you and the Company and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written with respect to these Services. Any rights not expressly granted herein are reserved.
We take our commitment to you seriously, and we’ll do what we can for you. However, sometimes things may come up that are outside of our control. We will not be liable for any failure to perform any of our obligations stated in these Terms if the failure results from a cause beyond our reasonable control, including—without limitation—mechanical, electronic or communications failure or degradation, strikes or other labor disputes (whether or not relating to our workforce), pandemics, warfare, restraints or delays affecting carriers, or our inability or delay in obtaining supplies of adequate or suitable materials for any reason beyond our control (each a “Force Majeure Event”). You agree that a Force Majeure Event will not excuse your obligation (if any) to pay and/or reimburse Canoa under an Order Form and lack of funds on your part will not constitute a Force Majeure Event.
You cannot assign, transfer or sublicense these Terms without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without consent. These Terms do not create any agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.
If we do not enforce any part of these Terms, it does not mean we give up the right to later enforce that or any other part of these Terms. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
You release the Company and our successors from all losses, damages, rights, and demands and actions of any kind, including personal injuries, death, and property damage, that are directly or indirectly related to or arise from your use of the Services (collectively, “Claims”). If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his favor at the time of executing the release, which, if known by him would have materially affected his settlement with the debtor.” This release does not apply to any Claims for unconscionable commercial practice by the Company or fraud, deception, false, promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services.
Comments, Concerns and Complaints
All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: firstname.lastname@example.org.