The terms and conditions of this END USER LICENSE & SERVICE AGREEMENT (the “Agreement”) apply to:
- the license, access and use of TMX dealLINX (the “Platform”) through TSX Trust Company’s or any of the TSX Trust Company’s affiliates (collectively, “TSX Trust”) website. This Agreement will apply to the use of the Platform for the following users: (i) any individuals or entities that are subject to a private financing or capital markets transaction acceptable to TSX Trust (the “Client”); (ii) any individuals or entities who have been granted the right to use the Platform to manage financing or capital markets transactions, upload documents and create access accounts for their authorized users (the “Lead User”); and (iii) when applicable, any individuals or entities who are granted an access account for use of the Platform by the Lead User (the “Account User”), (collectively the Client and the Lead User are hereinafter referred to as the “Transaction Representatives” - each one being a Transaction Representative - and, collectively the Transaction Representatives and the Account User are hereinafter referred to as the “End Users”,“you”, or “your” - each one being an End User), and sets forth a legally binding agreement between you and TSX Trust (together “we”, “us” or “our”); and
- the services to be provided by TSX Trust to the Client and Lead User through the Platform (the “Services”) as further described at Part 9 of this Agreement.
The Account Users will agree to a distinct End User License Agreement with TSX Trust.
The Transaction Representatives’ access and use of the Platform, along with the Services and materials contained or referenced herein, are governed by and subject to the terms and conditions outlined in this Agreement, as well as all applicable laws.
By logging in and using the Platform, you represent that you (1) are over the age of 18, (2) have the right and authority to legally bind yourself and, as the case may be, the company, firm and/or employer on whose behalf you are entering into this Agreement, and (3) have not been previously suspended or removed from using the Platform by TSX Trust.
IF YOU DO NOT AGREE TO ALL THESE TERMS OR CANNOT TRUTHFULLY MAKE SUCH REPRESENTATIONS, SELECT THE “DECLINE” BUTTON AT THE END OF THIS AGREEMENT AND DO NOT USE THE PLATFORM. By selecting “Accept” at the bottom of this Agreement, you agree on your and your company’s, firm’s or employer’s behalf to be legally bound by all the terms and conditions in this Agreement, including any additional guidelines and future modifications.
Part 1 - INTERPRETATION
Capitalized terms used in this Agreement which are not otherwise defined within the body of the Agreement shall have the meanings set out below:
- "Confidential Information" means any and all information disclosed by either Party to the other through the Platform for the purpose of a transaction, and shall include this Agreement, the terms and conditions hereof, any Platform fees agreed upon between the Parties and any Personal Information provided through the Platform for the purpose of a transaction. The Parties acknowledge that all Content is regarded as Confidential Information and that the Content may include non-public information of publicly traded companies, and that applicable securities laws prohibit any person who has received such non-public information from purchasing or selling securities of such issuer or from communicating such information to any other person. Except with respect to Personal Information, “Confidential Information” does not include (i) information that subsequently enters the public domain through no fault of TSX Trust; (ii) information that is already known to TSX Trust with no obligation of confidentiality; or (iii) information that is required to be disclosed through enforceable process of law.
- “Content” means any information, including Personal Information of End Users and any data of TSX Trust or any End Users submitted, filed, uploaded, published or otherwise transmitted within or on the Platform, or generated by using the Platform, including but not limited to investor data, issuer data, and investment data and any data, analytics and reports based on such information;
- “Discretion” means the sole and absolute discretion of a Party;
- “End User” means any individual or entity that is authorized under this Agreement to use the Platform with respect to the Services;
- “Intellectual Property Rights” means all: (i) copyrights, including copyright registrations and applications and unregistered copyrights in both published and unpublished works, including all computer programs, manuals and other documentation; (ii) Trademarks; (iii) patents; (iv) trade secrets and Confidential Information; (v) industrial designs; (vi) any other right relating to intangible, intellectual or industrial property, whether arising under statute, common law, civil law or otherwise anywhere in the world; and (vii) all rights or interests in or relating to any of the foregoing under licenses, waivers or agreements, including past, present, and future causes of action, rights of recovery, claims, accounting for profits, royalties, or other relief relating, referring, or pertaining to any of the foregoing;
- “Personal Information” means any information about an identifiable individual or information that is otherwise subject to privacy laws, including the Personal Information Protection and Electronic Documents Act (Canada) or equivalent legislation in any other jurisdiction;
- “Services” means the services to be provided by TSX Trust to the Transaction Representatives through the Platform as further described at Part 9 of this Agreement.
- “Systems” means the computer systems, including all hardware, software, peripherals, utilities, telecommunications, Internet service or other connectivity, which are or will be used by the End User to access the Platform and are owned or licensed by, or otherwise contracted to the End User; and
- “Trademarks” means all trademarks, trade-names, service marks, brands, trade dress, distinguishing guises, business names, domain names, tag lines, designs, graphics, logos and other commercial symbols and indicia of origin whether registered or not, and any goodwill associated therewith.
- “Uploaded Information” means any information submitted, filed, uploaded, published or otherwise transmitted within or on the Platform by an End User.
- Capitalized terms used in this Agreement which are not otherwise defined within the body of the Agreement shall have the meanings set out below:
Part 2 - GRANT OF RIGHTS AND ACCESS
- Use Grant. Subject to the terms and conditions of this Agreement, TSX Trust hereby grants to the Transaction Representatives the right to use the Platform solely with respect to the Services in accordance with the terms of this Agreement.
- License Restrictions. The Transaction Representatives (i) shall not, and shall not authorize any third party to, engage, directly or indirectly, in the disassembly, reverse engineering, de-compilation, or translation of the Platform; (ii) shall not have any rights over any of the source code in the Platform; and (iii) shall not subcontract or grant access to the Platform, except that if the Transaction Representative is a Lead User, it shall be permitted to grant access to Account Users under its control to the Platform.
- Title. TSX Trust or its licensors (as appropriate) will retain all Intellectual Property Rights in, to and associated with the Platform and any new versions thereof and all research and development and experimental development in respect thereto made by TSX Trust or its licensors. A Transaction Representative exclusively owns and shall retain all Intellectual Property Rights in and to all Confidential Information or Content of the Transaction Representative. You grant TSX Trust, and our licensors, licensees, successors, and assigns, a worldwide, royalty free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, perform, display, distribute, and otherwise incorporate or derive Transaction Representative Content into any form, medium or technology, for any purposes, throughout the world without compensation to you. You further waive any and all moral rights or other rights of authorship as a condition of submitting any such Transaction Representative Content and will secure waivers of moral rights from any individual contributors to the Transaction Representative Content. TSX Trust and its licensors shall retain all right, title and interest in, to and associated with all works, inventions and other subject matter incorporating, based on, or derived from, any Transaction Representative Content, by whomsoever made, including all Intellectual Property Rights therein.
- Reservation of Rights. For certainty, this Agreement grants the Transaction Representatives only a right to use the Platform with respect to the Services and neither the Platform nor anything related to the Platform is sold or transferred to the Transaction Representatives. Except for the rights expressly granted to the Transaction Representatives in this Agreement, there are no other rights or licenses granted to the Transaction Representatives whether express or implied, and TSX Trust reserves all right, title and interest in, to or associated with the Platform, including but not limited to the rights to modify the Platform.
Further Prohibitions & Restrictions.
- The Transaction Representatives shall not do anything with the Platform that is not expressly permitted herein.
- The Transaction Representatives shall take all reasonable measures to safeguard the Platform from unauthorized use or disclosure and shall notify TSX Trust promptly of any unauthorized access or use. Except as permitted herein, the Transaction Representatives shall not allow anyone, other than authorized End Users, to gain access to the Platform, or any portion thereof.
- The Transaction Representatives shall comply with all applicable local, provincial, federal and foreign laws in using the Platform.
Access. You acknowledge and agree that your access of the Platform is subject to the further requirements:
- You will have a non-exclusive, non-assignable, non-transferable right to access the Platform solely with respect to the Services and according to your approved access level.
- The Platform, or any functionality or part of the Platform (or any of the Services), may be unavailable, in whole or in part, from time to time, and may be permanently discontinued at any time. We may implement updates to, perform maintenance on, or make other changes to the Platform at any time. We will use commercially reasonable efforts to give you advance notice where possible and to advise you in the event that changes will result in temporary or permanent unavailability of the Platform or any part thereof.
Part 3 - USE OF THE SOFTWARE
- Use Guidelines. The Transaction Representatives shall use the Platform solely with respect of the Services and as contemplated by this Agreement and shall not (i) allow any third party to use the Platform, other than as necessary to provide access to the Platform to Account Users as contemplated by this Agreement; (ii) knowingly send or transmit spam or unsolicited messages in violation of applicable laws through the Platform; (iii) knowingly send, store or transmit obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children through the Platform; or (iv) attempt to gain unauthorized access to the Platform.
Responsibilities of the End User. You acknowledge and agree that your access to the Platform is subject to compliance with the following Transaction Representative responsibilities:
- It is your responsibility to update your Platform user profile as soon as possible in the event of any change to your Personal Information, your current status or role within the company(ies) with which you are associated, or any other role, responsibility, authorization or access associated with the Platform.
- You agree not to reproduce, duplicate, copy, distribute or redistribute the Platform or any information, data, or Content contained therein, in whole or in part, in whatever medium.
- You are responsible for the truth, accuracy currency and completeness of any Uploaded Information or Transaction Representative Content that you submit, add, file, approve, or otherwise make available or transmit through the Platform. You represent and warrant that any and all Uploaded Information or Transaction Representative Content submitted by you is true, accurate, and complete, and that such information is not misleading, in violation of any securities law or other law, and does not violate any duty of confidentiality you may owe to any other End Users or third parties.
- Further to (c), above, you acknowledge that the Uploaded Information or Transaction Representative Content which you provide to, or which you may access via the Platform, may consist of or include Confidential Information related to another End User or a third party, and you agree that you will, at all times, treat any such Confidential Information as confidential in accordance with all applicable securities law requirements and in accordance with any other legal obligations to which you may be bound.
- You represent and warrant that you have all rights necessary to submit and share the Uploaded Information or Transaction Representative Content through the Platform.
- You are responsible for any programs, viruses, or disabling or harmful devices introduced to the Platform through your use of same. You agree: (i) to use your best efforts not to submit, file, upload or transmit in any capacity, Uploaded Information or Transaction Representative Content (documents, forms, videos, photos, etc.) that may contain viruses or any other similar software that may damage or disrupt the operation of the Platform, compromise the security of the Platform, or cause the unauthorized disclosure of data to any person; (ii) not to interfere with or disrupt networks connected to the Platform; and (iii) not to use any device or software or attempt to interfere with the proper functioning of the Platform.
- You agree to ensure, on behalf of any company(ies) with which you are associated, that you have verified and confirmed the status of any Uploaded Information and Transaction Representative Content and, where applicable, to retain original copies of any content as required by the company(ies).
- You agree to ensure that any Personal Information contained in the Uploaded Information and Transaction Representative Content is verified and confirmed as to the status of same and, where applicable, to retain original copies of any such content as you may require.
- Use Restrictions. The Transaction Representatives shall not: (a) remove any proprietary notices (for example, “Powered by Katipult”), labels, or marks from the Platform; (b) access or use the Platform in order to build a competitive product or service, or assist any third party in the capacity of a consultant, adviser, partner or investor to build a competitive product or service.
- Feedback. If a Transaction Representative provides TSX Trust with reports of defects in the Platform or proposes or suggests any changes or modifications to the Platform or any aspect of the Platform (collectively “Feedback”), TSX Trust and/or its licensors shall have the right, in its or their sole Discretion, to use and exploit the Feedback including, without limitation, the incorporation of such Feedback into future software products and/or services, without any obligation to the Transaction Representative. In addition, all Transaction Representatives hereby agree that in consideration for entering into this Agreement, all Intellectual Property Rights in and to the Feedback are hereby forever assigned to TSX Trust and/or its licensors.
Part 4 - TRADEMARKS
- Use of Trademarks. All Trademarks (including, without limitation “TMX dealLINX”) shall remain the exclusive property of TSX Trust and/or its licensors, as the case may be, whether or not specifically recognized or perfected under applicable laws, and you agree to not display or use these Trademarks in any manner without TSX Trust’s or our licensor’s prior written permission, as the case may be. No Transaction Representative shall acquire any Intellectual Property Rights, or take any action that jeopardizes the proprietary rights, in the Trademarks of TSX Trust and/or any of its licensors, as the case may be.
Part 5 - SUPPORT SERVICES
- Except as otherwise agreed between the Parties in this Agreement, there is no obligation on TSX Trust and/or any of its Licensors to provide support to any Transaction Representatives.
- TSX Trust may agree, itself or through any of its licensors, to provide support services directly to a Transaction Representative. The Transaction Representatives acknowledge and agree that only TSX Trust (or any of its licensors) will be responsible for providing any agreed support services to the Transaction Representatives, and that no third party will be responsible or authorized to provide any such support services.
Part 6 - SYSTEM FUNCTIONALITY AND SECURITY
Conditions. The access rights granted to the Transaction Representatives to use the Platform is subject to strict compliance with the terms and conditions set out in this Agreement and the following conditions:
- the Transaction Representatives shall ensure that the Transaction Representatives’ Systems are fully functional and operational to permit the proper functioning of the Platform. Any modifications, updates or de-bugging of the Transaction Representatives’ Systems to permit the use of the Platform shall be the sole responsibility of the Transaction Representatives;
- the Transaction Representatives shall only permit the Lead User, Client or Account Users, as appropriate, to use and access the Platform on the Transaction Representatives’ Systems;
- you are responsible for all actions taken using your login information. You agree to keep your login information secure and not to disclose such information to any third person. You agree not to use any other person’s login information and not to permit any person to use your login information. You agree not to, and not to instruct, direct or permit any End User or other third party to, disable or bypass any Platform security features or account limits;
the Transaction Representatives shall:
- strictly comply with and observe at all times all policies and procedures implemented, modified or amended by TSX Trust or its licensors from time to time in respect of the Platform. The Transaction Representatives acknowledge and agree that this Agreement incorporates by reference all operating rules, policies and procedures of which we notify you and which we post from time to time on the Platform;
- not disclose or share any user names, passwords or other methods of access to the Platform with any other person or party;
- comply with, abide by and use all security mechanisms that are incorporated into and form part of the Transaction Representatives’ Systems and the Platform;
- provide a level of protection and security consistent with industry standards for the Transaction Representatives’ Systems in order to ensure that no disclosure or unauthorized use of, or the unauthorized access to the Transaction Representatives’ Systems, is permitted;
- not attempt to circumvent the security features of the Platform or any part thereof, including testing or examining such security features; or
- not negligently or deliberately degrade or attempt to degrade the performance of the Platform or otherwise attempt to cause or permit any damage to the Platform or any part thereof.
- Transaction Representatives’ Systems. The Transaction Representatives shall be solely responsible for the integrity of the Transaction Representatives’ Systems used to access the Platform, including the creation of security access restrictions to the Transaction Representative Content.
- Conditions. The access rights granted to the Transaction Representatives to use the Platform is subject to strict compliance with the terms and conditions set out in this Agreement and the following conditions:
Part 7 - TERMS APPLICABLE TO LEAD USERS
- Usage Rights Granted to the Lead User. In addition to the rights granted otherwise in this Agreement, TSX Trust will grant the Lead User a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to allow the Lead User to remotely, via the internet, access and use the Platform for the following additional uses: (i) uploading any applicable documents to the Platform including Uploaded Information and Content; and (ii) granting account access to the Platform to Account Users, as otherwise agreed to by the Parties.
Lead User Terms and Conditions. In addition to the terms and conditions otherwise agreed to in this Agreement, the Lead User agrees to the following specific terms and conditions:
- If you provide any Uploaded Information or End User Content on the Platform, you represent and warrant that you have all right and authority to do so, and will be entirely responsible and liable for any breach of this obligation;
- You are solely responsible for any Uploaded Information provided through the Platform. You are responsible for assessing the sufficiency or credibility and/or undertaking your own independent verification of all Uploaded Information. You acknowledge and agree that TSX Trust is not and will not be in any way responsible for evaluating or verifying the Uploaded Information and makes no representation or warranty whatsoever regarding the accuracy, completeness, legality or otherwise of any Uploaded Information uploaded by you as the Lead User or any End User;
- You are solely responsible for maintaining the confidentiality of your Account and password and for restricting access to your computer, and you acknowledge and agree that you are at all times fully responsible and liable for all activities that occur under or using your account or password;
- You represent that all information you provide on registration and at all other times is and will be at all times true, accurate, current, and complete. You will keep this information accurate and up-to-date at all times.
- If you have reason to believe your account is no longer secure, then you will immediately notify us in writing; and
- You may be liable for any losses incurred by us or third parties due to any unauthorized use of your account.
- Acceptance. You agree that you shall be bound by these Lead User terms as well as the terms applicable to all Transaction Representatives.
Part 8 - TERMS APPLICABLE TO THE CLIENT
Client Terms and Conditions. In addition to the terms and conditions otherwise agreed to in this Agreement, the Client agrees to the following specific terms and conditions:
- If you provide any Uploaded Information or End User Content on the Platform you represent and warrant that you have all right and authority to do so, and will be entirely responsible and liable for any breach of this obligation;
- You are solely responsible for any Uploaded Information provided through the Platform. You are responsible for assessing the sufficiency or credibility and/or undertaking your own independent verification of all Uploaded Information. You acknowledge and agree that TSX Trust is not and will not be in any way responsible for evaluating or verifying the Uploaded Information and makes no representation or warranty whatsoever regarding the accuracy, completeness, legality or otherwise of any Uploaded Information uploaded by you as the Client or any End User;
- Acceptance. You agree that you shall be bound by these Client terms as well as the terms applicable to all Transaction Representatives.
- Client Terms and Conditions. In addition to the terms and conditions otherwise agreed to in this Agreement, the Client agrees to the following specific terms and conditions:
Part 9 - SERVICES
Services. TSX Trust is providing the Transaction Representatives with access to the Platform to manage certain administrative tasks associated with a transaction. By using the Platform, each Transaction Representatives acknowledges and agrees that:
- It shall not use the Platform as part of, or to facilitate, any marketing, advertisement, promotion or solicitation in respect of a transaction;
- TSX Trust is not and will not be involved in any marketing, advertisement, promotion or solicitation activities in respect of a transaction; and
- the Client and other End Users will have solicited investors for any transactions prior to referring investors to the Platform to complete any transaction documents;
- It shall not use the Platform as a “crowdfunding” portal;
- The Platform does not and will not handle money or assets nor will the Platform operate a separate account to maintain any funds from investors. End Users shall send funds for any transaction directly to TSX Trust;
- Neither the Platform, TSX Trust or any affiliate of TSX Trust, nor any representative of TSX Trust or any affiliate of TXT Trust will assist any End Users in the vetting of investors to ensure compliance with applicable securities laws or any other criteria for a transaction;
- The Platform is only intended to assist in the administrative process of transactions and TSX Trust is providing the Services only in respect of any transaction facilitated through the Platform. The provision of such Services shall not constitute or be construed or deemed to be (a) an endorsement by TSX Trust of the transaction facilitated through, or the Client using, the Platform, nor (b) evidence that TSX Trust has recommended, approved or passed judgement upon the merits of the transaction facilitated through, or the Client using, the Platform;
- No representative of TSX Trust or any affiliate of TSX Trust will: (a) contact, or offer any recommendation or advice to, investors (End Users) or assist investors (End Users) in completing any documentation, (b) assist any End User in structuring a transaction, or provide input on the terms of any transaction, or (c) suggest or introduce any potential investors or transactions to the Client, its dealer or advisors; and
- TSX Trust does not (i) guarantee the results of a transaction, (ii) that a transaction will be completed or (iii) if a transaction is completed, it will be completed on terms acceptable to any End Users.
- Know Your Customer and Other Regulatory Checks. Access to the functionalities of the Platform and provision of the Services will only be definitely granted to the Client and/or the Lead User if the “Know Your Customer” mandatory process and other regulatory verifications including, without limitation, anti-money laundering and anti-terrorist financing checks are performed by TSX Trust, with conclusions acceptable to TSX Trust based on applicable regulatory requirements.
- TSX Trust Policies and Procedures. Access to the functionalities of the Platform and provision of the Services will only be definitely granted to the Client and/or the Lead User if TSX Trust is satisfied that the access to the Platform and the use of the Services will comply at all times with all policies and procedures implemented, modified or amended by TSX Trust or its licensors from time to time. Once access is granted to the Platform, the provision of the Services by TSX Trust will remain subject to the Client’s and the Lead User’s observance at all times of these policies and procedures.
- Securities Law Requirements. The Transaction Representatives acknowledge and agree that TSX Trust is not providing, and the Transaction Representatives are not relying on TSX Trust to so provide, advice as to the applicability of securities laws or exchange policies in respect to the completion of the transactions contemplated by the Transaction Representatives or other parties to the transactions being contemplated. The Transaction Representatives shall be responsible for ensuring any business or transaction being completed with the Platform complies with any applicable laws (including securities laws), exchange policies, or other related requirements. The Transaction Representatives shall not, expressly or implicitly, claim in any way or form whatsoever that TSX Trust has endorsed, recommended, approved or passed judgement upon the merits of the transaction facilitated through, or the Client using, the Platform.
- Regulatory Requirements. The Transaction Representatives represent and warrants that the Transaction Representatives are solely responsible for ensuring compliance with all regulatory requirements, including but not limited to continuous disclosure obligations, regulatory approvals, shareholder and corporate approvals, and any filings that may be required for the business or transactions being completed.
- Payment of Platform Fees. In consideration for being granted access to the Platform and for the Services provided through the Platform under this Agreement, the Client will pay TSX Trust the Platform fees established by TSX Trust from time to time. The Platform fees are non-refundable and are not contingent on the success of a transaction. Notwithstanding anything to the contrary in this Agreement, in the event that the Lead User and the Client are not the same individual or entity, that the Client mandates the Lead User to pay any Platform fees on behalf of the Client, and the Lead User fails to pay such Platform fee on time and/or for any reason whatsoever, then the Client acknowledges and agrees that it shall be fully liable and responsible for the payment of such Platform fee upon receipt of notice from TSX Trust that the Lead User has not paid.
- Uploaded Information and Content. Under no circumstances will TSX Trust be responsible, or bear any liability, for (a) the nature, legitimacy, currency or accuracy of any Uploaded Information and Content made available on the Platform, whether or not the foregoing originates from a third party; (b) the nature, legitimacy, currency or accuracy of any Uploaded Information and Content submitted by any End Users; or (c) any loss or damage caused by your reliance on Uploaded Information or Content obtained through the Platform. You acknowledge and agree that it is your responsibility to evaluate the accuracy, completeness, and usefulness of any information provided, and the use of the Platform and the Uploaded Information and Content accessed through the Platform is solely at your own risk.
- TSX Trust Use of Uploaded Information and Content. Notwithstanding anything to the contrary in this Agreement, each Transaction Representative acknowledges and agrees that, by using the Platform and uploading, sharing, disclosing or otherwise providing any Uploaded Information or Content through the Platform, it hereby consents and grants to TSX Trust the right to use all such Uploaded Information and Content for any purpose, commercial or otherwise, as determined by TSX Trust in its Discretion, subject to compliance with applicable laws. The Transaction Representatives further acknowledge and agree that TSX Trust shall have the right to disclose such Uploaded Information and Content as required to comply with this Agreement and for any other purpose as determined by TSX Trust, in its Discretion.
- TSX Trust Use of Personal Information. Notwithstanding anything to the contrary in this Agreement, each Transaction Representative acknowledges and agrees that, by using the Platform and uploading, submitting, sharing, disclosing or otherwise providing any Personal Information through the Platform, it hereby consents and grants to TSX Trust the right to use all such Personal Information in order to (i) set-up and complete the transaction for which the Personal Information has been disclosed, (ii) comply with a judicial proceeding, court order, or legal process related to the Platform, and (iii) comply with all requirements of applicable laws including but not limited to any reporting and verification requirements imposed under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (S.C. 2000,c. 17).
- Confidentiality. Neither Party will use any Confidential Information of the other Party except as necessary to perform its obligations hereunder or as expressly authorized in writing by the other Party. Each Party shall use the same degree of care to protect the other Party's Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care.
- Services. TSX Trust is providing the Transaction Representatives with access to the Platform to manage certain administrative tasks associated with a transaction. By using the Platform, each Transaction Representatives acknowledges and agrees that:
Part 10 – INDEMNIFICATION, LIMITATION OF LIABILITY AND INSURANCE
- Uploaded Information. Subject to this Agreement, the Transaction Representatives shall have the right to upload and publish Uploaded Information to the Platform. TSX Trust will not, and has no obligation, responsibility or duty to, evaluate or verify the Uploaded Information and is not responsible or liable for and makes no representation or warranty whatsoever regarding the accuracy, completeness, legality, or otherwise of any Uploaded Information. Each Transaction Representative is solely responsible, for its own account, to assess the sufficiency or credibility and/or to undertake its own independent verification of any such Uploaded Information.
- Limitation of Liability. The Platform is provided to and accepted by each Transaction Representative “as is”. In no event shall TSX Trust, its licensors or their respective officers, directors, employees or shareholders by virtue of this Agreement have any liability whatsoever to any Transaction Representative or third party for any direct, indirect, general, special, incidental, punitive or consequential damages including but not limited to, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by a Transaction Representative, howsoever caused, including, without limitation, arising out of or in connection with (i) the use or failure to use the Platform, (ii) the failure, malfunction, interruption, unavailability, delay, discontinuance, or termination of the Platform, (iii) the Services, and (iv) under any theory of liability (including negligence) and whether or not such party has been advised of the possibility of such damage.
Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT:
- THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND;
- TSX TRUST (WHICH FOR PURPOSES OF THIS SECTION 10.3 INCLUDES TSX TRUST, OUR PARENT, SUBSIDIARIES, AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE;
- NEITHER TSX TRUST NOR ANY OF ITS LICENSORS REPRESENTS OR WARRANTS THAT THE PLATFORM (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED;
- WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TSX TRUST AND ITS LICENSORS EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO END USER IN CONNECTION WITH END USER’S USE OF THE PLATFORM (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON FOR ANY PURPOSE WHATSOEVER; AND
- OUR SOLE OBLIGATION, AND YOUR SOLE REMEDY, WILL BE TMX’S EXERCISE OF REASONABLE EFFORTS TO CORRECT ANY MALFUNCTION IN THE PLATFORM AND TO PROVIDE ACCESS TO THE PLATFORM AS SOON AS REASONABLY POSSIBLE IN THE CIRCUMSTANCES.
- Indemnity. Each Transaction Representative agrees to indemnify, hold harmless, and defend TSX Trust, its affiliates, directors, officers, employees and licensors from and against any and all suits, claims, proceedings at law or in equity, and any and all liability, loss or damage, including reasonable legal fees, which TSX Trust or any End Users or any third party may incur, arising out of or in connection with (i) the use of or failure to use the Platform, (ii) the failure, malfunctioning, interruption, unavailability, delay, discontinuance, or termination of the Platform, (iii) any claim made as a result of noncompliance with any legislation by the Client or the Lead User (or their respective employees or representatives), (iv) a breach of this Agreement by any End Users, or (v) any misuse of the Platform by any End Users.
Part 11 – GENERAL TERMS
- Agreement Applicability. Unless otherwise stated within this Agreement, all provisions within this Agreement apply equally to the Client, Lead User and the Account User.
- Legal Advice. Neither this Agreement, the Platform, TSX Trust, or any related statements or guidelines provided in connection with the use of the Platform constitute legal advice, legal opinions or any other form of advice. End Users should seek and obtain independent legal advice for any transactions being completed through the Platform.
- Acceptance. All terms, conditions and obligations of the Agreement will be deemed to be accepted by the End User by clicking the “Accept” button at the bottom of this agreement. (“Acceptance”). If you do not agree to all these terms or cannot truthfully make such representations, select the “decline” button at the end of this agreement and do not use the Platform.
- Term. The term of this Agreement will begin on Acceptance and will continue in full force and effect until terminated as contemplated herein or upon the End User ceasing to access the Platform.
Termination. If you wish to terminate this Agreement, you may do so by requesting the closing of your End User account in writing to TSX Trust and ceasing to use the Platform. TSX Trust may at any time, terminate your use of the Platform and this Agreement as follows:
- automatically, and without advance notice if you have breached any provision of the Agreement, if you have acted in a manner which clearly demonstrates that you do not intend to act in accordance with the Agreement, or if you are unable to comply with the provisions of the Agreement; or
- automatically, upon notice (which TSX Trust will use reasonable efforts to provide to you in advance) if TSX Trust is required to do so by law (for example, where the access to the Platform to you is, or becomes, unlawful in any manner).
- Obligations on Termination. Except as expressly provided herein, upon termination of this Agreement, you will immediately cease using the Platform and you hereby agree to release TSX Trust from any and all liability and claims of loss resulting from restrictions, disruptions, or cessations of the Platform, in whole or in part.
- Governing Law. The Parties to this Agreement submit to the jurisdiction of the courts of the Province of Ontario for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the Province of Ontario and the laws of Canada applicable therein.
- Relationship. This Agreement and use of the Platform does not create or imply any relationship in agency, joint venture, employment or partnership between the Parties.
- Interpretation. Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
- Severability. If any term provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, in whole or in party, it is the parties’ intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
- Successors. This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Transaction Representatives’ successors and assigns.
- Network-Based Limitation. Use of certain functions of the Platform depends on your network(s), including cabling, facilities and equipment that is not under TSX Trust control; accordingly (i) TSX Trust cannot guarantee any minimum level regarding such performance, speed, reliability, availability, use or consistency, and (ii) data, messages, information or materials sent over the network(s) may not be completely private, and your anonymity is not guaranteed, even if we take reasonable precautions to encrypt or direct the same.
- Third Party Content. The Platform may include hyperlinks to other websites, content or resources. TSX Trust has no control over any websites, content or resources which are provided by companies or persons other than TSX Trust. The Transaction Representatives acknowledge and agree that TSX Trust is not responsible for the availability of any such external websites, content or resources, and does not endorse any content, advertising, products, services or other materials on or available from such websites or resources. The Transaction Representatives further acknowledge and agree that TSX Trust is not liable for any loss or damages which may be incurred by the Transaction Representatives as a result of the availability of or access to any such external websites, content or resources, or as a result of any reliance placed by the Transaction Representatives on the completeness, accuracy or existence of any content, advertising, products, services or other materials on, or available from, such websites or resources.
- No Waiver. A failure on the part of TSX Trust to exercise or enforce any legal right or remedy permitted under this Agreement or applicable law will and does not constitute a waiver of any of TSX Trust’s rights and the Transaction Representatives acknowledge and agree that those rights or remedies will at all times remain available to and exercisable by TSX Trust.
- Assignment. TSX Trust may at any time assign its rights and obligations under this Agreement, in whole or in part, without advance notice to any Transaction Representatives. No Transaction Representative may assign its rights and obligations under this Agreement, directly or indirectly, without TSX Trust’s prior consent. Subject to the foregoing, this Agreement shall be binding and enure to the benefit of the parties and respective successors and permitted assigns.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter contemplated herein, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The Parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement. No modification or amendment of this Agreement by any End User shall be effective unless in writing and signed by TSX Trust.
- Survival. All provisions that, by their meaning or nature, are intended to survive termination or expiry of this Agreement shall survive termination or expiration of this Agreement.
- Language. The official text of this Agreement and any amendment thereto or any notices required hereby shall be in English. . Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et lest autres communications, soient rédigés et signés en anglais seulement.
- Communications to You. We may provide you with notifications via email, in hard copy, or through posting of such notice on the Website, as we may determine in our sole discretion.
Contact Us. If you have any questions or concerns about this Agreement, please contact us:
- By email at email@example.com ; or
- By mail at TSX Trust Company, 301 – 100 Adelaide Street West, Toronto, Ontario, Canada, M5H 4H1