StoryTap Services Agreement

 

This StoryTap Services Agreement together with any additional terms expressly incorporated by reference (collectively the “Agreement”) is entered into as of [DATE], (“Effective Date”) by and between StoryTap Technologies Inc (“StoryTap”), with its principal place of business located at Bentall Four, 1055 Dunsmuir St Suite 3000, Vancouver, BC V7X 1K8 and [Company Name]. (the “Company”), with its principal place of business located at [Company Address].  Each of StoryTap and Company shall individually be referred to as a “Party” and jointly as the “Parties”. ‌

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

This Agreement sets forth the terms and conditions that govern the provision and use of: (i) the StoryTap Services (as defined below) for building, creating and sharing user-generated, directed video stories; (ii) Professional Services made available by StoryTap in respect of the StoryTap Services as set out in an Order Form; and (iii) Company’s use of StoryTap Services to capture user-generated video stories. This Agreement may be entered into and the StoryTap Services may be used by companies in furtherance of their own brand strategy (“Brands”) or advertising agencies (“Agencies”) acting on behalf of Brands.

 

‌1. Definitions

 

‌ As used in this Agreement, the following capitalized words have the meaning set out below:

  • Company Content means any Content, Company Data, information, content, records, and files that Company (or any of its Permitted Users) loads, receives through, transmits to or enters into the StoryTap Services.
  • Company Data” means any data, information, content, records, and files  that Company (or any of its Permitted Users) loads or enters into, or provides to StoryTap for loading or entering into, the StoryTap Services.
  • Confidential Information” has the meaning in Section 7 (a).
  • Content” means any content, information, scripts, guides, documents, records, and files that is loaded, received through, transmitted to or entered into the StoryTap Services, including the Story Guides and Video Content.
  • Dashboard” means a central interface allowing Company to provision and to monitor the StoryTap Services.
  • End User” means anyone to whom the Company makes the StoryTap Services available in order to capture video stories.
  • Fees” has the meaning set out in Section 6.
  • Manager Users” means those employees, independent contractors, and other end users of the Company and, if the Company is an Agency, of a Brand for which the Agency is providing services, authorized by Company to access and use the StoryTap Services to manage Video Content.
  • Modifications means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
  • Order Form” means the order form set out at Exhibit A, or any additional order form that references this Agreement once executed by both Parties.
  • Personal Information” means information about an identifiable individual.
  • Professional Services” means the consulting, training and other professional services described in an Order Form. The term “Professional Services” does not include StoryTap Services.
  •  “Services” means the StoryTap Services and the Professional Services, collectively, and any part thereof.
  • StoryTap Services” means services through which StoryTap hosts and makes available the StoryTap Software for building, creating, curating, sharing and distributing directed video stories submitted by End Users.  The term “StoryTap Services” includes the StoryTap Software and Technical Support Services.
  • StoryTap Software” means StoryTap’s software platform to build, create, and share Video Content, made available under the name “StoryTap”, and any updates provided as part of the StoryTap Services.
  • StoryTap Story Policy” means the story policy set out on the Website at https://storytap.com/terms#content 
  • StoryTap Terms and Conditions” means the terms and conditions set out on the Website.
  • Technical Support Services” means the support services described in Section 5.
  • Term” has the meaning set out in Section 10(a).
  • Video Content” means the directed video stories posted by End Users that may be viewed on or accessed through the StoryTap Software.
  • Website” means any websites used by StoryTap to provide the StoryTap Services, including the websites located at www.storytap.com and app.storytap.com.

2. The Services

 

  • Provisioning of the Services.  Subject to Company’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, StoryTap will use commercially reasonable efforts to:
    1. Make the following available to the Company, during the Term,:‌
      1. the StoryTap Services for its own purposes, and if Company is an Agency, to Brands to which it provides services, and for demonstration purposes to End Users and potential End Users;
      2. the Dashboard for the purposes of provisioning the StoryTap Services for Manager Users and End Users (collectively “Permitted Users”); 
      3. the right to make the StoryTap Services available to Manager Users and End Users. Such use is limited to Company’s internal use.
    1. Perform the Professional Services as outlined in the Order Form. 
  • Accounts.  Upon Company’s request, StoryTap will issue one or more administrator accounts (the “Administrator Accounts”) to Company that provides Company with the capability to create user accounts for Manager Users (each, a “Manager User Account”) that Company wishes to have access to and use of the StoryTap Services. Company will ensure that Manager Users only use the StoryTap Software or StoryTap Services through a Manager User Account.  Company will not allow any Manager User to share their Manager User Account with any other person, let anyone access their Manager User Account, or do anything else that might jeopardize the security of their Manager User Account.  Company will not allow any Manager User to transfer their Manager User Account without first receiving StoryTap’s written permission. Company will promptly notify StoryTap of any actual or suspected unauthorized use of the StoryTap Services. StoryTap reserves the right to suspend, deactivate, or replace a Manager User Account if it determines that the Manager User Account may have been used for an unauthorized purpose. Company will ensure that if StoryTap disables a Manager User Account, the Manager User will not create or be provided with another one without StoryTap’s permission. StoryTap may review any Administrator Account or Manager User Account for compliance with this Agreement, the StoryTap Terms and Conditions, and the StoryTap Story Policy, including usage of the StoryTap Services. Company will comply with all applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any governmental or regulatory authority (“Applicable Laws”), including privacy laws, for any Personal Information of Manager Users that is collected, stored, used, or disclosed in related to a Manager User Account.
  • Responsibility for Video Content.  Company will remain solely responsible for the Video Content that Company, or if Company is an Agency, that the Brand, creates, collects, transmits, stores, uses, or processes using the StoryTap Services.
  • Terms Applicable to Agencies.  If Company is an Agency, Company will enter into an agreement with each Brand prior to making the StoryTap Services available to such Brand which contain provisions that are sufficient to enable Company to comply with its obligations set out in this Agreement. Without limiting the foregoing, Company will ensure that all Permitted Users of the StoryTap Services are contractually bound to terms and conditions with Company that are no less restrictive or protective of StoryTap’s rights than those set forth in this Agreement.  In addition, Company shall ensure that each Manager User accepts the StoryTap Terms and Conditions and the StoryTap Story Policy set out on the Website in advance of accessing or using the StoryTap Services.
  • Responsibility for Manager Users.  Company is responsible for identifying and authenticating all Manager Users and for Manager Users’ compliance with this Agreement. 
  • Restrictions on Use. Company must not itself, and will not permit Manager Users to:
    1. Sub-license (except as permitted in Section 2(a)), sell, rent, lend, lease or distribute the StoryTap Services or any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (“Intellectual Property Rights”)  therein or otherwise make the StoryTap Services available to others;
    2. Use or access the StoryTap Services: 
      1. In violation of any Applicable Law or Intellectual Property Right;
      2. In a manner that threatens the security or functionality of the StoryTap Services;  or 
      3. For any purpose or in any manner not expressly permitted in this Agreement;
    3. Use or access the StoryTap Services in a manner that violates the StoryTap Terms and Conditions or the StoryTap Story Policy;
    4. Use the StoryTap Services to create, collect, transmit, store, use or process any Company Content, that:
      1. Contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or Company Content; or
      2. Company does not have the lawful right to create, collect, transmit, store, use or process; or
      3. Violates any Applicable Laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right, or right of publicity);
    5. Modify the StoryTap Services;
    6. Reverse engineer, decompile or disassemble the StoryTap Services; 
    7. Remove or obscure any proprietary notices or labels on the StoryTap Services, including brand, copyright, trademark, and patent or patent pending notices;
    8. Access or use the StoryTap Services for the purpose of building a similar or competitive product or service; 
    9. Perform any vulnerability, penetration, or similar testing of the StoryTap Services; or
    10. Use or access the StoryTap Services in a manner that is contrary to any additional restrictions set out in the Order Form or for any purpose or in any manner not expressly permitted in this Agreement.
  • Suspension of Access; Scheduled Downtime; Modifications.  StoryTap may, at its discretion:
    1. Suspend Company’s, any End User’s or any Manager User’s access to or use of the Services, the Dashboard or any component thereof and may monitor or remove any Video Content submitted to the StoryTap Services:
      1. For scheduled maintenance;
      2. If Company or Manager User violates any provision of this Agreement;
      3. If Company or any End User posts Video Content that is offensive, libelous, obscene, indecent, harassing, defamatory, hateful, infringing, illegal, or that otherwise violates any provisions of the StoryTap Story Policy;
      4. If Company (or in the case of an Agency, a Brand provided access by the Company), Manager User, or End User violates any provisions of the StoryTap Terms and Conditions; 
      5. Due to Force Majeure; 
      6. If required to do so by a regulatory body or as a result of a change in Applicable Law; or
      7. To address any emergency security concerns; and
    2. Modify the StoryTap Services.  Company is required to accept all patches, bug fixes and updates made by or on behalf of StoryTap to the StoryTap Services.
  • Access and Security. Company shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all user name, identification number, password, licence or security key, security token, personal identification number (PIN) or other security code, method, technology, or device used alone or in combination, to verify an individual’s identity and authorization to access and use the Services and protect against any unauthorized access to, or use of, the Services; and (b) control the content and use of Company Content, including the uploading or other provision of Company Data for processing by the Services. StoryTap will not be responsible for Services failures caused by failures in telecommunications networks, misuse of the StoryTap Services or any other Services by Permitted Users or other events outside StpryTap’s reasonable control.
  • Data Back up. The Services do not replace the need for Company to maintain regular data backups or redundant data archives. STORYTAP HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF COMPANY CONTENT.
  • Subcontractors. StoryTap may, from time to time, in its discretion engage third parties to perform Services.

 

3. Ownership; Reservation of Rights

 

  • ‌Company Data. As between StoryTap and Company, Company retains all ownership and Intellectual Property Rights in and to Company Content loaded to the StoryTap Services. Company grants to StoryTap a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up, transferable and sublicensable license to access, use, collect, Modify, process, store and transmit such Company Content to: (A) provide the StoryTap Services; and (B) (i) analyze Company Content and information relating to the provision, use and performance of the StoryTap Services and related systems and technologies(ii) use such Company Content information relating to the provision, use and performance of the StoryTap Services and related systems and technologies to improve and enhance the StoryTap Services and for other development, diagnostic and corrective purposes in connection with the StoryTap Services; and (iii) use and disclose Company Content and information relating to the provision, use and performance of the StoryTap Services and related systems and technologies solely in aggregated and de-identified form in connection with its business generally, including using and disclosing (portions of) Story Guides created with or assembled using the StoryTap Services provided such use and disclosure does not identify the Company, products or services, which are the subject of the story guide (all such data, information and materials, collectively the “Aggregated Statistical Information”). StoryTap may use, process, store, disclose and transmit the Aggregated Statistical Data for any purpose and without restriction or obligation to the Company of any kind.
  • StoryTap Property. StoryTap or its licensors retain all ownership title and interest including Intellectual Property Rights in and to: 
    1. The Services;
    2. Anything developed or delivered by or on behalf of StoryTap under this Agreement including but not limited to Aggregated Statistical Information; 
    3. StoryTap’s Confidential Information; and 
    4. Any Modifications to the foregoing (a), (b), and (c)(“StoryTap Property”). 
  • Feedback. Company grants to StoryTap and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the StoryTap SaaS Services, any suggestion, enhancement request, recommendation, correction, or other feedback provided by Company or Permitted Users relating to the operation of Services or any of StoryTap’s affiliates’ services (“Feedback”).  Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Company or Permitted Users and without any obligation to the Company or any Permitted User. StoryTap is not obligated to use any Feedback.
  • Reservation of Rights. All rights not expressly granted by StoryTap under this Agreement are reserved.

4. Privacy 

 

‌Privacy. Company understands that Personal Information, including the Personal Information of Manager Users and End Users, will be treated in accordance with StoryTap’s privacy policy located at http://storytap.com/terms/#privacy (the “Privacy Policy”).

5. Support

 

‌Company will generally have access to StoryTap’s technical support from 9:00 am Pacific Time to 5:00 pm Pacific Time each Monday to Friday (excluding statutory and civic holidays observed in Vancouver, British Columbia, Canada); and via email at hello@storytap.com (“Support Services”). StoryTap may amend the Support Services from time to time in its sole discretion.

6. Fees and Payment

  • Fees.  Company will pay to StoryTap the fees described in each Order Form (the “Fees”). Company will be billed for usage and Company will pay the fees in accordance with this Agreement. Unless otherwise noted in the Order Form, all Fees are identified in US dollars and are payable in advance. 
  • Changes to the Fees.  Except as otherwise provided for in the Order Form, StoryTap reserves the right to change the Fees and institute new charges following each anniversary of the Term upon providing not less than 60 days prior notice to Company, by providing a replacement Order Form to Company.
  • Invoicing.  Except as otherwise provided for in the Order Form, StoryTap will prepare and send to the Company, at the then-current contact information on file with StoryTap, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Company will pay all invoiced amounts within 30 calendar days of the invoice date.
  • Disputed Invoices or Charges.  If Company believes StoryTap has charged or invoiced Company incorrectly, Company must contact StoryTap no later than 30 days after having been charged by StoryTap or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Company will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
  • Late Payment.  Company may not withhold or setoff any amounts due under this Agreement. StoryTap reserves the right to suspend Company’s access to the Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
  • Taxes.  The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes.  Company will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of StoryTap.
  • Suspension.  Any suspension of the StoryTap Services by StoryTap pursuant to the terms of this Agreement will not excuse Company from its obligation to make payments under this Agreement.

7. Confidential Information

 

  • ‌Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its service providers, licensors or customers that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: 
    1. Information already known or independently developed by Recipient without access to Discloser’s Confidential Information; 
    2. Information that is publicly available through no wrongful act of Recipient; or
    3. Information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Without limiting the foregoing: 
      1. All Company Data (including all Personal Information) is and will remain the Confidential Information of the Company; and
      2. The Services and StoryTap Property are and will remain the Confidential Information of StoryTap; and 
      3. The  terms and existence of this Agreement are the Confidential Information of  StoryTap.
    4. Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not:
      1. Disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates that have a “need to know” for the purposes of receiving or providing the Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement; 
      2. Use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or 
      3. Alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry-standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type. 
    5. Exceptions to Confidentiality. Notwithstanding Section 10(b), Recipient may disclose Discloser’s Confidential Information: 
      1. To the extent that such disclosure is required by Applicable Laws or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; 
      2. To its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or 
      3. In the case of StoryTap, to potential assignees, acquirers or successors of StoryTap if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of StoryTap.

 

8. Warranty; Disclaimer; Indemnity

 

  • COMPANY WARRANTY. Company represents and warrants to, and covenants with StoryTap that the Company Content: (i) will only contain Personal Information in respect of which Company has provided all notices and disclosures (including to each Permitted User), obtained all applicable consents, and permissions and otherwise has all authority, in each case as required by and in compliance with Applicable Laws, including applicable privacy laws, to enable StoryTap to provide the Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transfer of Personal Information, including by or to StoryTap and to or from all applicable third parties; and (ii) will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any Applicable Law.

    Without limiting the foregoing, to the extent the Services including the sending of any email, text messages or other electronic communications by or on behalf of Company, Company represents and warrants to, and covenants with StoryTap that StoryTap shall comply with all Applicable Laws, including all applicable notice, consent, message form, content and unsubscribe requirements under applicable privacy and anti-spam laws (including Canada’s anti-spam legislation) and Company shall solely be responsible for maintaining records sufficient to demonstrate its compliance with such Applicable Laws. Story Tap will use the Company Content performing the Services “as is”, and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness, or completeness of the Company Content. Company’s responsibilities in this Agreement apply notwithstanding that StoryTap may provide templates, samples, guidance or suggestions relating to any matters that are Company’s responsibilities under this Agreement.
  • GENERAL DISCLAIMER.  STORYTAP DOES NOT WARRANT THAT THE STORYTAP SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE STORYTAP SERVICES.  EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE STORYTAP SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY STORYTAP TO COMPANY ARE PROVIDED “AS IS” AND “AS AVAILABLE”.

    TO THE EXTENT PERMITTED BY APPLICABLE LAW, STORYTAP HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, STORYTAP EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY CONTENT OR INFORMATION PROVIDED TO COMPANY IN CONNECTION WITH COMPANY’S USE OF THE STORYTAP SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY COMPANY FOR ANY PURPOSE WHATSOEVER.

    STORYTAP DOES NOT ENDORSE THE VIDEO CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE, OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY VIDEO CONTENT.
  • Indemnity. Each Party will defend, indemnify and hold harmless the Other Party, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns (each, an “Indemnitee”) from and against any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”)  incurred by an Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party ((including End User’s and Manager User’s) that arise from or relate to:: 
    1. Party Content; 
    2. Breach of any obligations, representations or warranties under this Agreement; 
    3. Use of the StoryTap Services (or any part thereof) by a Party or any Manager User in combination with any third-party software, application or service; or 
    4. End User’s use of any of the StoryTap Services, including use contrary to the StoryTap Terms and Conditions or the StoryTap Privacy Policy. Each Party will fully cooperate with the Other Party in the defense of any claim defended by the Other Party pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of the Other Party.

9. Limitation of Liabilities

 

  • AMOUNT IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF STORYTAP IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY COMPANY FOR THE UNDER THIS AGREEMENT IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.  IN NO EVENT WILL STORYTAP’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
  • TYPE.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL STORYTAP BE LIABLE TO COMPANY, A CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, CONTENT, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

10. Term and Termination

 

  1. ‌Term. This Agreement will commence on the Effective Date and continue to be in effect for an initial period of [one year] (the “Initial Term”).  Except as otherwise set out in the Order Form,  this Agreement will automatically renew for successive [one year] terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the Initial Term or then-current Renewal Term.   
  2. Termination for Cause.  Either Party may terminate this Agreement or any applicable Order Form, by giving to the other Party written notice of termination upon the occurrence of any of the following events:  
    1. The other Party breaches or defaults on any of the material terms or conditions of this Agreement and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; 
    2. The other Party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or 
    3. Any proceedings are instituted by or against the other Party under any insolvency laws or for reorganization, receivership or dissolution.  
  3. Effect of Termination.  Upon expiration or termination of this Agreement, Company will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the StoryTap Services and return any StoryTap Property in its possession and certify in writing to StoryTap that the StoryTap Property has been returned. Following termination, prior to the end of the Term, StoryTap will provide Company the ability to download its Company Content. No expiration or termination will affect Company’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Company to any refund. All Fees due and payable and any amounts due to StoryTap are immediately due and are to be immediately paid by Company to StoryTap. No new Order Forms may be agreed to or entered into by the Parties, upon the termination of this Agreement.
  4. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 6 (Fees and Payment), Section 7 (Confidential Information), Section 8 (Warranty; Disclaimer; Indemnity), Section 9 (Limitation of Liabilities), Section 10(d) (Survival), and Section 11 (General Provisions).

11. General Provisions

 

  1. ‌Notices.  Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given.  Notices must be in writing and sent: 
    1. If to StoryTap, to the following address:
      Bentall Four, 1055 Dunsmuir St Suite 3000, Vancouver, BC V7X 1K8,
      Attn: Bernadette Butler / hello@storytap.com
    2. If to Company, to the current postal or email address that StoryTap has on file with respect to Company. StoryTap may change its contact information by posting the new contact information on the Website or by giving notice thereof to Company.  Company is solely responsible for keeping its contact information on file with StoryTap current at all times during the Term.
  2. Assignment Company will not assign this Agreement to any third party without StoryTap’s prior written consent.  StoryTap may assign this Agreement or any rights under this Agreement to any third party without Company’s consent. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
  3. Governing Law and Attornment.  This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles.  The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.  This choice of jurisdiction does not prevent StoryTap from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
  4. Export Restrictions.  Company shall not to directly or indirectly export or re-export any of the Services without first obtaining all required licenses, permits and permissions required under Applicable Laws. StoryTap makes no representation or warranty that the Services may be exported without Company first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.  
  5. Construction.  Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative.  The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of StoryTap in this Agreement means the right of StoryTap to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Company. 
  6. Force Majeure.  Neither Party will be liable for delays caused by any event or circumstances beyond StoryTap’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, computer attacks or malicious acts, pandemics or public health emergencies, strikes, slowdowns, walkouts or other labour problems (other than those involving StoryTap’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (each a “Force Majeure”). This Section does not apply to any of Company’s obligations under Sections 6, 7 or 8.
  7. Severability.  Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
  8. Waiver.  A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
  9. Independent Contractors.  StoryTap’s relationship to Company is that of an independent contractor, and neither Party is an agent or partner of the other.  Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of or bind the other Party. 
  10. Entire Agreement.  This Agreement and the Order Forms constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral.
  11. Amendments.  No amendment, supplement, modification, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
  12. English Language.  It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
  13. Customer Lists. StoryTap may identify the Company by name and logo as a StoryTap’s customer on StoryTap’s Website and on other promotional materials. Any goodwill arising from the use of the Company’s name and logo will inure to the benefit of the Company.
  14. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.