These Terms set out the provisions pursuant to which Pathmata Networks Inc. dba Dash Hudson will provide to the Customer access to the Dash Hudson proprietary web-based platform that enables brand, retailers and publishers to engage with consumers through the creation and promotion of content through Dash Hudson’s platform.
DEFINITIONS AND INTERPRETATION.
Definitions. For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
“Agreement” means these Terms and Conditions (as updated from time to time) together with any Schedules attached hereto;
“Influencer” means an individual with an active Instagram account following;
“Instagram” means the online mobile video and photo sharing service;
“Service” means access to Dash Hudson’s online, web-based and mobile platform including the features and functionality described in Section 2.2;
“Term” has the meaning given in Section 9.1; and
“User” means an employee, contractor or agent of Customer who is authorized by Customer to use the Service, and who has been supplied a user account and password by Customer (or by Dash Hudson at Customer’s request) for the Service.
In this Agreement: (a) words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (b) all usage of the word “including” or the phrase “e.g.,” in this Agreement shall mean “including, without limitation,” throughout this Agreement; (c) all dollar amounts are expressed in United States dollars (USD).
Provision of Service. Conditioned on the provisions and other terms and conditions of this Agreement, Dash Hudson shall make the Service available to Customer during the Term for use in Customer’s business on a non-exclusive, non-transferable basis.
Service Features. Customer will have access to a variety of features then current for the Service as described.
Change Requests by Customer. Customer may request and Dash Hudson may provide any of those additional features for the Service at rates to be agreed as part of the subscription fee. Neither party will be bound to perform under or accept any change request made under this Agreement unless or until both parties agree to the same in writing.
Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Service available to any third party; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; or (iv) disclose any benchmarking or results of the Service to third parties without Dash Hudson’s prior written consent.
Restrictions. Customer shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service; (b) circumvent any user limits or other timing or use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service; (d) frame or mirror any content forming part of the Service; or (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service.
Service Changes by Dash Hudson. Dash Hudson reserves the right to alter, suspend, or discontinue the Service or the Dash Hudson platform at any time and for any reason or no reason without any liability to Customer except that Dash Hudson will provide a pro-rata refund for any pre-paid fees for the remaining unexpired term of Customer’s subscription. In such cases, Dash Hudson will endeavour to give notice of such changes. The Service may also be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. Dash Hudson may periodically add or update the information and materials on the Dash Hudson platform without notice.
Provision of Service. Conditioned on the terms and conditions of this Agreement and payment of the Fees, Dash Hudson shall make the Service available to Customer during the term of the Customer’s subscription and provide basic support to Customer in respect to Customer’s permitted use of the Service. Dash Hudson will also provide any professional services agreed upon separately as part of the agreement. Customer acknowledges and agrees that the Service may be unavailable at times during the Term because of: (a) planned downtime; or (b) any unavailability caused by circumstances beyond Dash Hudson’ reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Dash Hudson’s possession or reasonable control, and denial of service attacks.
Customer Responsibilities. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer agrees to use the Service solely for lawful purposes only. In this respect Customer may not, without limitation: (i) use the Service to manage any illegal operations, (ii) use any type of spider, virus, worm, Trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the technology underlying the Service (including Dash Hudson’s proprietary software and apps which may be available for download on the Website), (iii) use the Service to send any unsolicited commercial communication not permitted by applicable law; or (iv) endanger any part of any system or Internet connection of Dash Hudson or any third party through use of the Service.
Service Limitations. The Service is not a back-up service and accordingly Dash Hudson will not be responsible for any lost data due to server crashes or other events outside Dash Hudson’s reasonable control.
Incremental Services. From time to time, additional Dash Hudson or third-party functionality (such functionality being deemed not to be part of the Service) may be made available by Dash Hudson to Customer and which additional functionality may be purchased by Customer for additional fees in accordance with any additional terms and conditions specified by Dash Hudson.
FEES AND PAYMENT.
Payment Terms. In consideration for the receipt of the Service and the licenses and other consideration granted hereunder, Customer shall pay Dash Hudson the fees specified in the plan payment form. All payments shall be made to Dash Hudson on the first day of each calendar month, or as per the stated contract terms in the case of pre-paid subscriptions. Any pro-rated fee for partial month’s use shall be due immediately upon commencement of the service. Dash Hudson reserves the right to increase service fees from time to time on provision of written notice to Customer. Fee increases will take effect from the next billing period.
Invoicing and Payment of Taxes. All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Customer. Any such taxes that are imposed shall be the sole responsibility of Customer.
Overdue Payments. Any payment not received from Customer by the due date will accrue late charges at the rate of one percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, from the date such payment was due until the date paid.
Suspension of Service. If Customer account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Dash Hudson reserves the right to suspend the Service provided to Customer, until such amounts are paid in full or terminate the Service and this Agreement.
Service Fee Renewals. All subscriptions will automatically renew and the relevant fees will be processed and charged to Customer in full unless Customer notify Dash Hudson at least thirty (30) days in advance of next billing period. Recurring payments for periodic subscriptions are processed on the first day of the month for any subscriptions.
Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, Dash Hudson reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer in this Agreement other than as expressly set forth in this Agreement.
Customer Data. As between Customer and Dash Hudson, Customer will own and retain ownership of content provided, stored and processed through the Service (“Customer Data”). Customer hereby grant Dash Hudson a worldwide, royalty-free, and non-exclusive license during the Term to access Customer Data in order to: (i) provide the Service, including storing, hosting and management of such content; and (ii) create Pattern Data (as defined in Section 5.4 below). Together Sections 5.2(i) and (ii) constitute the “Content License”). Customer understand that Dash Hudson, in performing the required technical steps to provide the Service, may (a) transmit or distribute Customer Data over various public or private networks and in various media; and (b) make such changes to Customer Data as are necessary to conform and adapt that Customer Data to the technical requirements of connecting networks, devices, services or media. Customer confirm and warrant to Dash Hudson that Customer have all the rights, power and authority necessary to grant the above Content License and that use of the Customer Data in the manner contemplated will not breach the rights of any third party.
Content Responsibilities. Customer is responsible for any and all content provided hereunder and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Customer Data to be made available to Dash Hudson for Dash Hudson to transmit, host and store. For greater certainty, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and notify Dash Hudson promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
Pattern Data. “Pattern Data” means non-personally identifiable information, data and reports derived from or compiled through the Service, including but not limited to demographics data, aggregated statistics on user conversion, location data and trend data such as aggregated data and statistics which may indicate frequency and type of use of the Service, and popularity of the Service. For greater certainty, Pattern Data is data that does not identify a specific customer, its business contracts or its end users. As between Dash Hudson and Customer, all right and title to Pattern Data belongs to Dash Hudson and accordingly Dash Hudson is free to use Pattern Data for any purpose including the improvement of the Service.
Suggestions. Dash Hudson shall have a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Service.
Copyright and Trademark Information. Except for Customer Data, the Dash Hudson platform, and the information and materials that it contains, are the property of Dash Hudson and its licensors, and are protected from unauthorized copying and dissemination by copyright law, trademark law, international conventions and other intellectual property laws. All Dash Hudson product names and logos are trademarks or registered trademarks. Nothing contained on the Dash Hudson platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Dash Hudson platform or any materials displayed on the Dash Hudson platform, through the use of framing or otherwise, except: (a) as expressly permitted by these terms and conditions; or (b) with the prior written permission of Dash Hudson. Customer shall not attempt to override or circumvent any of the usage rules or restrictions on the Platform.
Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner as it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
WARRANTIES AND DISCLAIMERS.
General Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.
General Service Warranties. Dash Hudson represents and warrants that during the Term (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. For greater certainty, Dash Hudson does not warrant that Customer’s use of the Service will be error-free or uninterrupted.
The Service is provided by Dash Hudson to Customer on an ‘as is’ basis and there are no warranties, representations or conditions, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage of trade or otherwise, regarding the Service or in connection with this Agreement by Dash Hudson (including its affiliates, licensors, suppliers and subcontractors). Dash Hudson (including its affiliates, licensors, suppliers and subcontractors) disclaims any implied warranties or conditions of merchantable quality, satisfactory quality, merchantability, durability, fitness for a particular purpose and/or non-infringement. Dash Hudson (including its affiliates, licensors, suppliers and subcontractors) does not represent or warrant that the Service will meet any or all of Customer’s particular requirements, that the Service will operate error-free or uninterrupted or that all errors or defects in the Service can be found or corrected.
Security. Information sent or received over the Internet is generally unsecure and Dash Hudson cannot and does not make any representation or warranty concerning security of any communication to or from the Dash Hudson platform or any representation or warranty regarding the interception by third parties of personal or other information.
LIMITATION OF LIABILITY.
Release. Because Dash Hudson does not supervise or control interactions between Brands and its stakeholders (influencers, followers, community, partners), and because Dash Hudson does not control credit card companies or other payment processing companies, and because Dash Hudson does not screen or monitor brand activities, and because Dash Hudson does not endorse any Influencers, and because Dash Hudson has very limited control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of various aspects of the Dash Hudson platform, Customer hereby agrees that Customer bears all risk and Customer agrees to release Dash Hudson (and their officers, directors, shareholders, agents, employees, affiliates, subsidiaries, and third party partners) (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, now and in the future, arising out of or in any way connected with Customer’s use of the Dash Hudson platform including transactions with any Influencers. Customer further waives any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.
Limitation of Liability. In no event shall Dash Hudson’s aggregate liability arising out of or related to this agreement, whether in contract, tort (including negligence) or under any other theory of liability, exceed actual damages up to a maximum of the fees paid to Dash Hudson by customer during the twelve (12) month period preceding a claim.
Exclusion of Consequential and Related Damages. In no event shall either party have any liability to the other party for any indirect, special, incidental, punitive, or consequential damages (including, without limitation, damages for loss of business, loss of revenue, loss of profits, business interruption, loss of data, lost savings or other similar pecuniary loss) however caused and, whether in contract, tort (including negligence) or under any other theory of liability, whether or not a party has been advised of the possibility of such damages.
Certain Damages Not Excluded. Notwithstanding the foregoing provisions of this section, no limitation of either party’s liability setforth in this agreement shall apply to (I) damages arising from a party’s breach of its confidentiality obligations, or (II) damages arising from infringement and/or misappropriation of a party’s intellectual property rights.
TERM AND TERMINATION.
Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue until the termination date described in the plan. On expiry of the Initial Term, this Agreement will automatically renew until terminated by either party on provision of written notice, as per the contract conditions. Termination will take effect prior to the next billing cycle. In no case is early cancellation of a term or pre-paid contract considered in this Agreement, and if notice by the Customer to cease use of the Dash Hudson services is given, the full contact amount remains payable in full. In the case of month to month billings (not under term contract) notice to cancel must be provided thirty (30) days prior to the next billing period or the amount due on the next billing period will be paid in full. Each renewal and the initial term collectively constitute the “Term”.
Obligations on Termination or Expiration. Notwithstanding any termination or expiration of this Agreement, Customer shall settle any payment obligations incurred. Each party will return or destroy at the election of the disclosing party, the Confidential Information of such disclosing party.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
Third-Party Beneficiaries. Every right, exemption from liability, release, defense, immunity and waiver of whatsoever nature applicable to Dash Hudson under this Agreement shall also be available and shall extend to benefit and to protect Dash Hudson’ affiliates and its and their officers, directors and employees and for such purposes Dash Hudson is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons.
All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to each party shall be addressed to such party’s signatory of this Agreement.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated in this Agreement, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Force Majeure. Except for obligations to pay any fees under this Agreement, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party). If either party’s performance is prevented by a force majeure event for a period of more than thirty (30) calendar days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts due and payable immediately prior to the commencement of such force majeure event.
Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Governing Law. This Agreement shall be governed by the laws of the Province of Nova Scotia, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only. Les parties aux présentes confirment que c’est leur volonté que la présente convention de même que tous les documents, y compris les avis, s’y rattachant, soient rédigés en Anglais seulement.
Venue; Waiver of Jury Trial. The provincial and federal courts located in Halifax, Nova Scotia, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Further Assurances. Each party will from time to time and at all times do such further acts and execute and deliver such further documents as may be reasonably required in order to evidence, carry out and give full effect to the terms, conditions, intent and meaning of this Agreement.
Complete Understanding. These Terms and any external documents referenced therein (including delivery timetables and deliverable requirements), constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, proposal or representation (whether written or oral) concerning its subject matter.
Last Updated: Feb 4, 2016