Drive Smart 1 Driving School

Terms of Service Agreement

This Terms of Service Agreement (this "Agreement") is a binding contract between You ("Student", "you", or "your") and Trubicars Ltd.. ("Trubicars", "we", or "us"). This Agreement governs your access to and use of the Services provided for herein.

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "I ACCEPT THE TERMS OF SERVICE AGREEMENT" BUTTON OR BY ACCESSING OR USING THE SERVICES (the "Effective Date"). BY CLICKING ON THE "I ACCEPT" BUTTON OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU ARE AN INDIVIDUAL WITH THE CAPACITY TO ENTER INTO THIS AGREEMENT AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE OUR SERVICES.

1.                  Definitions.

(a)               “Acceptable Use Policy” has the meaning set forth in Section 4(a).

(b)               "Aggregated Statistics" has the meaning set forth in Section 3(f).

(c)               "Authorized User" means Students for whom access to the Services has been purchased hereunder.

(d)               "Student Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Student or any other Authorized User through the Services.

(e)               "Documentation" means Trubicars's user manuals, handbooks, and guides relating to the Services provided by Trubicars to Student either electronically or in hard copy form.

(f)                “Driving School” means a person who uses the Trubicars IP to offer their services and Instructors as a service to Students.

(g)               "Trubicars IP" means the Services, the Documentation, and all intellectual property provided to Student or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Trubicars IP includes Aggregated Statistics and any information, data, or other content derived from Trubicars's monitoring of Student's access to or use of the Services, but does not include Student Data.

(h)               “Instructor” means a person who uses the Trubicars IP to offer their services as a driving instructor to Students.

(i)                 "Services" means the services provided by Trubicars under this Agreement that are detailed on Trubicars's website available at https://www.trubicars.ca/. While the Services help facilitate an Instructor and Student relationship, the Services do not include the provision of driving lessons or instructions to Students.

(j)                 “Student” means a person who uses the Trubicars IP to search for and find a Driving School and/or Instructor and who communicates with a Driving School and/or Instructor through the Trubicars IP.

(k)               "Third-Party Products" means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Services.

2.                  Student Acknowledgements and Agreements. If you are a Student, the following applies to you:

(a)               You acknowledge and agree that any driving instruction will be provided by a Driving School and/or Instructor, and no relationship exists between you and Trubicars with respect to driving instruction. The Services are solely to help Driving Schools, Instructors and Students facilitate communications and Trubicars is not a party to any contractual relationship established between any Driving Schools, Instructors and Students. Trubicars makes no representations or warranties with respect to the suitability of any prospective Driving School or Instructor and you hereby waive any claim against Trubicars for the acts or omissions of any Driving School or Instructor. The relationship between you and any Driving School or Instructor from whom you may receive driving instructions from is governed by the local laws of the jurisdiction where you receive such instruction.

(b)               All scheduling matters for driving lessons shall be coordinated and communicated between you and the Driving School or Instructor.

(c)               Trubicars is not responsible for any failure of the Driving School or Instructor to perform any obligations owed to you, including in the event a Driving School or Instructor is insolvent, bankrupt or fails to provide any services.

(d)               Trubicars is not responsible for any refunds owing or claimed by you from any Driving School or Instructor.

(e)               The Driving School and Instructors are responsible for ensuring all licenses, permits and insurance necessary to provide its services are in place.  Trubicars has not, and is not liable to confirm or provide any due diligence with respect to the same.

(f)        Trubicars does not guarantee the availability of any particular Driving School, Instructor or vehicle.

3.                  Access and Use.

(a)               Location of Services. You acknowledge and agree that Trubicars’s servers and Student Data may be located on servers located inside or outside of Canada, including in nations that may have different laws than Canada. The Services are not intended for use outside of Canada or in the province of Quebec. You represent and warrant that you are a resident of Canada and that you are not a resident of Quebec. You agree not to use the Service outside of Canada or in the province of Quebec.

(b)               Provision of Access. Subject to and conditioned on your payment of Fees and compliance with all other terms and conditions of this Agreement, Trubicars hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services during the Term solely for your personal use or internal business operations by Authorized Users in accordance with the terms and conditions herein. Trubicars shall provide you the necessary passwords and access credentials to allow you to access the Services.

(c)               Documentation Licence. Subject to the terms and conditions contained in this Agreement, Trubicars hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Services.

(d)               Downloadable Software. Use of the Services may require or include use of downloadable software. Trubicars grants you a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software we provide as part of the Services. Any Third-Party Products that consist of downloadable software are subject to the terms of Section 4(e).

(e)               Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Services, any software component of the Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services, any software component of the Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule, including applicable privacy legislation.

(f)                Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Trubicars may monitor Student's use of the Services and collect and compile data and information related to Student's use of the Services to be used by Trubicars in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between Trubicars and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Trubicars. You acknowledge that Trubicars may compile Aggregated Statistics based on Student Data input into the Services. You agree that Trubicars may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Student or Student's Confidential Information.

(g)               Reservation of Rights. Trubicars reserves all rights not expressly granted to Student in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Student or any third party any intellectual property rights or other right, title, or interest in or to the Trubicars IP.

(h)               Suspension. Notwithstanding anything to the contrary in this Agreement, Trubicars may temporarily suspend Student's and any other Authorized User's access to any portion or all of the Services if: (i) Trubicars reasonably determines that (A) there is a threat or attack on any of the Trubicars IP; (B) Student's or any other Authorized User's use of the Trubicars IP disrupts or poses a security risk to the Trubicars IP or to any other Student or vendor of Trubicars; (C) Student or any other Authorized User is using the Trubicars IP for fraudulent or illegal activities; (D) subject to applicable law, Student has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Trubicars's provision of the Services to Student or any other Authorized User is prohibited by applicable law; (ii) any vendor of Trubicars has suspended or terminated Trubicars's access to or use of any third-party services or products required to enable Student to access the Services; or (iii) in accordance with Section 6 (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Trubicars shall use commercially reasonable efforts to provide written notice of any Service Suspension to Student and to provide updates regarding resumption of access to the Services following any Service Suspension. Trubicars shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured. Trubicars will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Student or any other Authorized User may incur as a result of a Service Suspension.

4.                  Student Responsibilities.

(a)               Acceptable Use Policy. The Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Trubicars's acceptable use policy ("Acceptable Use Policy") located at https://www.trubicars.ca/terms-and-conditions/, as may be amended from time to time. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted in the Acceptable Use Policy from time to time.

(b)               Account Use. You are responsible and liable for all uses of the Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.

(c)               Student Data. You hereby grant to Trubicars a non-exclusive, royalty-free, worldwide licence to reproduce, distribute, and otherwise use and display the Student Data and perform all acts with respect to the Student Data as may be necessary for Trubicars to provide the Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to reproduce, distribute, modify, and otherwise use and display Student Data incorporated within the Aggregated Statistics. You will ensure that Student Data and any Authorized User's use of Student Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Student Data.

(d)               Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.

(e)               Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.

5.                  Service Levels. Subject to the terms and conditions of this Agreement, Trubicars shall use commercially reasonable efforts to make the Services available in accordance with the service levels described in this Section 5 ("Service Levels") as follows:

(a)               Trubicars shall take commercially reasonable steps to ensure that the Services are available 90% of the time, as determined on a minute-by-minute basis for the total number of minutes in a calendar month (the “Uptime Level”);

(b)               The Service level shall not take into account and Trubicars shall not be liable for any internet infrastructure between you and Trubicars’s servers, or for any Third-Party Products;

6.                  Fees and Payment. All amounts owing by you to any Driving School or Instructor shall be remitted to Trubicars.  Trubicars will retain 2% of such amount (the “Fee”) and remit the balance to the Driving School or Instructor retained by you.  Trubicars may utilize an online payment facilitator such as Stripe, PayPal, or Square and any service fees charged by such facilitator may be charged to you.

7.                  Taxes. All Fees and other amounts payable by Student under this Agreement are exclusive of taxes and similar assessments. Student is responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity on any amounts payable by Student hereunder, other than any taxes imposed on Trubicars's income.

8.                  Confidential Information. From time to time during the Term, Trubicars, and Student may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire 5 years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

9.                  Privacy Policy. Trubicars complies with its privacy policy available at https://www.trubicars.ca/privacy-policy/ ("Privacy Policy"), in providing the Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.

10.              Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Services and the Trubicars IP and (b) you own all right, title, and interest, including all intellectual property rights, in and to Student Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All such Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.

11.              Limited Warranty and Warranty Disclaimer.

(a)               Student Warranty; General. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Student Data and that both the Student Data and your use of the Services are in compliance with the Acceptable Use Policy. You warrant that all information that you provide to and through the Services is true and correct.

(b)               Warranty. You warrant (i) that you are in full compliance with all local laws and statutes with respect to residential tenancy, and throughout the term of this agreement you continue to comply with all local laws and statutes; (ii) that you are the owner or the authorized representative of any driving school that you may list through the Services or offer driving instruction to Students and in the event of a change of authorization that you have listed through the service, you shall forthwith notify us of such change.

(c)               THE SERVICES ARE PROVIDED "AS IS" AND TRUBICARS SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TRUBICARS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TRUBICARS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE FOREGOING, TRUBICARS EXPRESSLY DISCLAIMS ANY WARRANTY THAT A DRIVING SCHOOL OR INSTRUCTORS IS A SUITABLE, THAT ANY VEHICLES USED FOR DRIVING INSTRUCTION IS SAFE AND SUITABLE, AND EXPRESSLY DISCLAIMS ANY OTHER WARRANTY WHATSOEVER WITH RESPECT TO ANY OTHER THING POSTED OR LISTED BY A THIRD PARTY TO OR THROUGH THE SERVICE.

12.              Indemnification. Student shall indemnify, hold harmless, and, at Trubicars's option, defend Trubicars and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Student Data, or any use of the Student Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights; (ii) based on Student's or any Authorized User's negligence or wilful misconduct or use of the Services in a manner not authorized by this Agreement; (iii) any breach of Student’s warranties under sections 11(a) or 11(b);(iv) any willful act or omission of Student; and (v) any Losses arising from the Students use of any Driving School or Instructor’s services; provided that Student may not settle any Third-Party Claim against Trubicars unless Trubicars consents to such settlement, and further provided that Trubicars will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defence thereof by counsel of its own choice.

13.              LIMITATIONS OF LIABILITY. IN NO EVENT WILL TRUBICARS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER TRUBICARS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL TRUBICARS'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO TRUBICARS UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

14.              Term and Termination.

(a)               Term. The term of this Agreement begins on the date of execution of this Agreement and shall continue for such time as the Services are being utilized.

(b)               Termination. In addition to any other express termination right set forth in this Agreement:

(i)                 either party may terminate this Agreement, for any reason upon 30 days' advance notice.

(ii)              either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or

(iii)            either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c)               Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Student shall immediately discontinue use of the Trubicars IP. No termination of this Agreement will affect Student's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Student to any refund.

(d)               Survival. This Section 14(d), Sections 6, 12, and 13 and any other right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

15.              Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. We will notify you of material modifications through direct email communication at your last email address on file with us for your account. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. Trubicars will provide 30 days’ advance notice of changes to any service level that Trubicars reasonably anticipates may result in a material reduction in quality or services.

16.              Dispute Resolution. If any dispute or controversy arises between you and Trubicars relating to or arising from this Agreement or the relationship between you and Trubicars (a “Dispute”), the Dispute will be resolved in accordance with this Section 16.

YOU AND TRUBICARS HEREBY EXPRESSLY WAIVE THE RIGHT TO ANY TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT. YOU AND TRUBICARS EACH AGREE THAT CLAIMS WILL ONLY BE BROUGHT IN YOUR AND TRUBICARS’S INDIVIDUAL CAPACITIES AND NEITHER OF YOU NOR TRUBICARS WILL BRING A CLAIM AS A PART OF A CLASS, WHETHER AS LEAD PLAINTIFF, MEMBER, REPRESENTATIVE, OR OTHERWISE.

(a)               Negotiation. Before resorting to arbitration, each of you and Trubicars will attempt to resolve the Dispute through negotiation, which negotiation may be conducted electronically or virtually. The complaining party (the “Complainant”) will first provide the other party (the “Respondent”) with a written notice of the dispute (a “Notice of Dispute”). The Notice of Dispute will include (i) the full legal name and contact information of the Complainant, (ii) describe the nature and basis of the claim or dispute in detail, and (iii) set out the specific relief that the Complainant is seeking. If Trubicars is the Complainant, Trubicars will send any Notice of Dispute to your last email address that you provided to Trubicars. If you are the complainant, you will send the Notice of Dispute to the address of our headquarters, which can be found on our website at [URL], prepaid, by registered mail or nationally recognized courier, with proof of receipt requested. The effective date of the Notice of Dispute will be the day that Trubicars receives it, if sent to Trubicars, or the day that Trubicars sends it by email if sent to you.

(b)               Binding Arbitration. If you and Trubicars are unable to come to a negotiated agreement within 30 days of the effective date of the Notice of Dispute, the Dispute will be finally and conclusively resolved by binding arbitration under the Arbitration Rules of the ADR Institute of Canada. The seat of arbitration will be Waterloo, Ontario, Canada and the arbitration may be conducted virtually at the request of either party. The language of the arbitration will be English. The arbitrator will be selected in accordance with the Arbitration Rules, and will be a former judge of Ontario or a senior lawyer licensed to practice law in Ontario and experienced in commercial disputes. There will be no appeal from the decision of an arbitrator except on a question of law. Costs of the arbitrator shall be determined by the arbitrator consistently with costs practice in the Superior Court of Justice in Ontario. To the maximum extent permitted by law, each arbitration shall be individually between two parties at a time, and no arbitrations shall be combined so as to form a class arbitration.

(c)               Enforceability/Law. Any question that must be put to a court pertaining to a Dispute shall be put to the courts of Ontario located in Waterloo, Ontario. If this Section 16 is found to be unenforceable in whole or in part, then the exclusive jurisdiction and venue provisions of Sections 17 and 18 shall govern. Any party may obtain an order reflecting a decision or order of the arbitrator in any court of competent jurisdiction.

17.              Governing Law. This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.

18.              Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, that are not resolved in accordance with Section 16 shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

19.              Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our email address provided. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.

 

388604560.1