In connection with the use of GETIT Local (as defined below) you and/or your organization or corporation (the “Customer”) and GETIT Technologies Inc. (the “Company”) hereby agree to the terms of service and conditions contained herein (collectively, the “Terms of Service”).
THESE TERMS OF SERVICE ARE SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. When changes are made, Company will update the “Last Updated” date at the bottom of these Terms of Service and make a new copy of the Terms of Service available on Company’s website.
1.1 In this Agreement:
(b) “Customer Data” means the data submitted by or for Customer to Company or collected and processed by or for Customer using the Dashboard.
(c) “Dashboard” means the GETIT Local management dashboard provided by Company to Customer to streamline data management and order tracking from GETIT Local, to which Customer is granted rights of access and use in accordance with this Agreement. As such, the Dashboard may be updated from time to time by Company in its sole discretion.
(d) “GETIT Local” means the customized and branded application provided by Company to Customer upon payment of the applicable Subscription Fee.
(e) “Customer” means the customer named in the applicable Order Form.
(f) “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes, if any, that Company makes available to Customer or End User, as the case may be.
(g) “End User” means a user of GETIT Local.
(h) “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. (i) “Order Form” means (i) an electronic form provided by Company to Customer for ordering a Subscription, or (ii) a written document executed by Company and Customer in respect of Customer’s purchase of the Subscription from Company.
Commented [IN1]: As opposed to having two versions of a ToS (website and signing), we generally see companies using order forms instead with the ToS simply being referenced within. This makes it easier for customers to access/review terms and also avoids lengthy, back and forth negotiation on terms. The Order Form template will need to be created by GETIT.
(j) “Subscription” means the right granted by Company to Customer to access and use the Dashboard in accordance with this Agreement, for the Subscription Term specified in the applicable Order Form.
(k) “Subscription Fee” means the fee payable by Customer for a Subscription as set out in the Order Form.
(l) “Subscription Term” means the period of time that Customer is authorized by Company to access and use the Dashboard.
2. GETIT LOCAL DASHBOARD
2.1 Right to Use. Subject to the terms and conditions of this Agreement (including the applicable Order Form) and payment of the applicable Subscription Fees, Company hereby grants to Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to access and use the Dashboard during the Subscription Term.
2.2 Reservation of Rights. Company shall own and retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Dashboard and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be subject to all of the provisions of this Agreement. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
3. CUSTOMER RESPONSIBILITIES
3.1 Customer Information. Customer will provide Company with cooperation, assistance, data, and other requested information and items as applicable in a professional and timely manner for development of the Dashboard and GETIT Local. Customer acknowledges that Company’s ability to provide the Dashboard and GETIT Local as described in the Order Form may be affected if Customer does not provide reasonable assistance as set forth above.
3.2 Promotion. Customer will actively promote GETIT Local through social media, featured newsletter promotion(s), Customer website, and any other means that are deemed appropriate for the duration of the Subscription Term.
3.4 Feedback. Customer may provide reasonable feedback to Company including but not limited to suitability, problem reports, suggestions, and any other information with respect to the Dashboard or GETIT Local (the “Feedback”). As such, Customer hereby grants to Company a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicensable, irrevocable, perpetual license to use or incorporate the Feedback into the Dashboard, Documentation, and any other GETIT Local products or services, or for any other purpose, any Feedback provided by Customers or End Users.
3.5 Security. Customer acknowledges that use of the Dashboard will involve the transmission of data for the purposes of order tracking and data management over the internet and other networks, and that such transmission could potentially be accessed by unauthorized parties. Company is not responsible for any data that is delayed, lost, altered, intercepted or stored during transmission across networks not owned or operated by Company, including but not limited to the internet and Customer’s local network. Customer shall protect its authorized user login names and passwords from access or use by unauthorized parties, and is solely responsible for its failure to do so. Customer must promptly notify Company of any suspected security breach.
4. SERVICES AND SUPPORT
4.1 Training. Company will provide all onboarding, Documentation, and training services to Customer in relation to the access and use of the Dashboard pursuant to an Order Form and payment of the applicable Subscription Fees.
4.2 Delivery. Company’s authorized driving partner will be responsible for the handling and delivery of food and beverages to End Users (the “Driving Partner”). The Driving Partner handling and delivering alcohol will be Smart Serve Ontario certified and will be trained and equipped by Company to serve alcohol on behalf of Customer. If End User orders alcohol, Driving Partner may require valid government-issued photo identification(s) matching the name on the order and to prove: (i) End User’s age to Driving Partner; and (ii) that End User is not intoxicated when receiving delivery. If End User is unable to meet these conditions to the satisfaction of Driving Partner then the alcohol product(s) may be withheld. If alcohol products are withheld, they will be returned to Customer and a refund will be issued to End User through GETIT Local for the amount of alcohol minus the cost of delivery.
4.3 Support. Company will provide Customer with support services and technical support for use of the Dashboard and GETIT Local for the duration of the Subscription Term. This technical support may also include support for bugs, errors, and any custom development (engineering) as required by Customer for GETIT Local and/or the Dashboard (the “Additional Support”). Additional Support will be provided to Company by Customer for a mutually agreed upon fee (exclusive to the Subscription Fee).
5. FEES AND PAYMENT
5.1 Fees and Payment Term. Customer shall pay the Subscription Fees specified in each Order Form. All Subscription Fees are quoted and payable in Canadian currency. After the Trial Period, Subscription Fees will be paid monthly Except as otherwise specified herein or in an Order Form, Subscription Fees are based on the Subscription purchased and payment obligations are non-cancellable. Subscription Fees paid are non-refundable.
5.2 Taxes. Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, HST, GST, sales, value-added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on its income, property and employees.
5.3 Invoicing and Payment. Subscription Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, charges are due XXX (XXX) business days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with the Company.
5.4 Suspension for Non-Payment. Company may suspend Customer’s use of the Dashboard if Customer fails to make payment due in respect of the Subscription and does not cure such non-payment within three (3) business days after receiving notice of such failure. Any suspension of the rights hereunder by Company under the preceding sentence shall not excuse Customer from its obligation to make all payment(s) under this Agreement.
5.5 Reconciliation. Reconciliations will be paid to Customer on the Monday of each week. Any reconciliations will be paid minus a processing fee of 2.9% plus thirty cents ($0.30) per transaction through Company’s authorized payment partner, plus any other amounts owing from any orders adjusted as a result of any End User order credit, refund, or redelivery as applicable (each an “Order Error”). In the case of Order Error, Customer will receive a report stating all fees and amounts that are subtracted from the reconciliation amount. Any Order Error adjustment between Customer and Driving Partner is at Company’s sole discretion.
6. INTELLECTUAL PROPERTY
6.1 The Dashboard. Company retains all right, title, and interest in and to the Dashboard, Documentation, and GETIT Local trademarks.
6.2 Trademarks. This Agreement does not authorize Customer to use Company’s name or any of its trademarks or service marks. Company may only use Customer’s name, trademarks, and service marks to the extent necessary to fulfill its obligations under these Terms of Service or as otherwise explicitly authorized in these Terms of Service.
6.3 Ownership of Customer Data. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Company does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data. Customer is responsible for End Users compliance with this Agreement, as applicable.
7. CONFIDENTIAL INFORMATION
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Dashboard and Documentation, Customer Data (which is the Confidential Information of the Customer), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.2 Confidentiality. Subject to Section 7.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Subscription Term and only as necessary to perform the Receiving Party’s obligations under this Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement. Customer shall not disclose any performance, benchmarking, or feature-related information about the Dashboard.
7.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
8. LIMITED WARRANTIES AND DISCLAIMERS
8.1 Dashboard and GETIT Local Warranties. Company hereby represents and warrants to Customer that:
(a) During the Subscription Term, the Dashboard and GETIT Local will perform materially in accordance with the Documentation therefor; and
(b) the Dashboard and GETIT Local will not contain any Malicious Code.
8.2 Warranty Exclusions. The warranties set forth in Section 8.1 shall not apply if the Dashboard or GETIT Local is used on or in conjunction with hardware or programs other than what is described in the Documentation.
8.3 EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE DASHBOARD AND GETIT LOCAL ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE DASHBOARD AND GETIT LOCAL; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CUSTOMER DATA TRANSMITTED TO OR FROM COMPANY VIA THE DASHBOARD AND/OR GETIT LOCAL. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE DASHBOARD AND/OR GETITLOCAL WILL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE DASHBOARD AND/OR GETIT LOCAL WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED. COMPANY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION
9.1 Indemnification by Company. Subject to this Agreement, Company shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the Dashboard and Documentation as contemplated hereunder infringes the intellectual property rights of a third party (each an “Infringement Claim”); provided, that Customer (a) promptly gives written notice of the Infringement Claim to Company; (b) gives Company sole control of the defense and settlement of the Infringement Claim (provided that Company may not settle or defend any Infringement Claim unless it unconditionally releases Customer of all liability); and (c) provides to Company, at Company’s cost, all reasonable assistance and information.
9.2 Other Remedies. In response to an actual or potential infringement claim, if required by settlement or injunction or as Company determines necessary to avoid material liability, Company may at its option: (a) procure rights for Customer’s continued use of the Dashboard, (b) replace or modify the allegedly infringing portion of the Dashboard to avoid infringement without reducing the Dashboard’s overall functionality, or (c) terminate the applicable Order Form and refund to Customer any prepaid, unused Subscription Fees for the terminated portion of the applicable Subscription Term.
9.3 Exclusions. Company’s obligations do not apply (a) to infringement resulting from Customer’s modification of the Dashboard or use of the Dashboard in combination with items not provided by Company, (b) to infringement resulting from use of a non-supported version of the Dashboard, (c) to unauthorized use of the Dashboard, or (d) if Customer settles or makes any admissions about a claim without Company’s prior consent.
9.4 Exclusive Remedies. This Section 9 sets out Customer’s exclusive remedy and Company’s entire liability regarding infringement of third party intellectual property rights.
10. INDEMNIFICATION BY CUSTOMER
10.1 Customer shall defend, indemnify and hold Company harmless against any loss, damage, or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against Company by a third party (a) alleging that Customer’s use of the Dashboard and/or GETIT Local is in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; (b) based on a breach of any data protection laws or a breach of this Agreement; or (c) caused by any negligent act or omission of Customer or its employees, contractors or agents (each a “Customer Indemnified Claim”); provided, that Company (a) promptly gives written notice of the Customer Indemnified Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Customer Indemnified Claim (provided that Customer may not settle or defend any Customer Indemnified Claim unless it unconditionally releases Company of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance and information.
11. LIMITATION OF LIABILITY
11.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 11.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).
11.2 Limitation of Liability. SUBJECT TO SECTION 11.3 HEREOF, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
11.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (IV) BODILY INJURY OR DEATH.
11.4 Application of Exclusions and Limitations. The foregoing limitations and exclusions of liability shall apply even if a party had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages and shall apply regardless of whether the action arose in contract, including, without limitation, from a fundamental breach, or breach of a condition, fundamental term or warranty, or in tort (including, without limitation negligence) or otherwise. The foregoing provisions limiting the liability of Company shall also apply to its officers, directors, employees, and agents as trust provisions for the benefit of such officers, directors, employees, and agents and shall be enforceable by such persons as trust beneficiaries
12. TERM AND TERMINATION
12.1 Subscription Term. The Subscription Term commences on the start date specified in the relevant Order Form and continues for a minimum Subscription Term of three (3) months (the “Trial Period”) in accordance with the provisions of this Agreement or applicable law. Unless otherwise agreed upon in the applicable Order Form, the Subscription shall automatically renew for additional periods of one (1) month (the “Post-Trial Period”) after the end of the Trial Period for the Post-Trial Period Subscription Fee in effect at the time of renewal unless Customer gives Company written notice of non-renewal at least thirty (30) days prior to the end of the applicable Subscription Term.
12.2 Termination. A party may terminate this Agreement or a Subscription for cause (i) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
13.1 Assignment. Customer may not transfer any of its rights or obligations under these Terms of Service without Company’s prior written consent. Company may transfer any of its rights or obligations under these Terms of Service without Customer’s prior written consent.
13.2 Force Majeure. Neither Company nor Customer shall be deemed to be in default of any provision of this Agreement (other than Customer’s obligation to pay amounts due to Company hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, civil disturbance, strikes, epidemics or pandemics, fires or other catastrophes.
13.3 Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
13.4 Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.
13.5 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of law principles. The courts located in the Province of Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each party hereby consents to the exclusive jurisdiction of such courts.
13.6 Entire Agreement. This Agreement is the entire agreement between Customer and Company in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written agreement with Company.
13.7 Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.8 Amendments. No amendment to any portion of this Agreement shall be binding upon the parties unless in writing signed by both parties. Notwithstanding the foregoing, (a) Company is entitled to make non-material changes to the Terms of Service without any notice to the Customer; and (b) except to the extent that Company is expressly prohibited by applicable law, Company further reserves the right to, within its sole discretion, make changes to this Agreement on a prospective basis, including to reflect changes in or required by law (including, changes to ensure the enforceability of this Agreement) or changes in business practices, by providing the Customer with reasonable notice of the change either electronically by posting notice of the change on Company’s website.
13.9 Additional Terms and Conditions. Neither Apple, Inc. (“Apple”) nor Google, Inc. (“Google”) (collectively, the “download service providers”) are parties to this Terms of Service agreement nor will they have obligations with respect to the Dashboard or GETIT Local. Company, not Apple or Google, is solely responsible for the Dashboard and GETIT Local, including any maintenance and support, and the content thereof as set forth hereunder. However, the download service providers, along with their respective subsidiaries, are third-party beneficiaries of these Terms of Service. Upon acceptance of these Terms of Service, the download service provider used to obtain the GETIT Local will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against End User as a third-party beneficiary.
13.10 Language of Agreement. The parties hereto confirm that they have requested that this agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non-officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.
Last update : November 13, 2020.