Terms of use & Terms of Service

Revision date: November 26, 2018

Disclaimer

The website and software application at www.Matchfield.com(the “Site”), is owned by Fitzii Incorporated, carrying on business as Matchfield (“Matchfield” and sometimes referred to as “we”, “us” and “our”).

By accessing or using the Site, you accept the terms and conditions contained below. If you do not agree to be bound by all of the Terms of Use, you are not authorized to access or otherwise use the Site. Matchfield will have the right, at its sole discretion, to modify, add or remove any terms set out in these Terms of Use, and any other policies or guidelines governing the Site, without notice or liability to you. Any changes to these Terms of Use will be effective immediately following the posting of such changes on the Site. You agree to review these Terms of Use from time to time and agree that any subsequent use by you of the Site following changes to these Terms of Use constitutes your acceptance of all such changes. If you do not agree to any changes to these Terms of Use, you agree to immediately discontinue your use of the Site.

Intellectual Property Notice

The features of the Site, and its arrangement, architecture and look and feel, including, without limitation, any software, code, and algorithms (collectively, the “Platform”), as well as the content, such as text, graphics, images, logos, software and other material including without limitation compilations, surveys, reports, listings, or other data aggregation conducted on the Site (collectively, the “Content“), are protected under Canadian, United States, and foreign copyright, trademark and other laws. All Content is the exclusive property of Matchfield, its content suppliers, licensors or clients. Unauthorized use of the Content is strictly prohibited by these Terms of Use and may also violate copyright, trademark, and other laws. You are prohibited from copying or adapting the HTML code that Matchfield creates to generate the pages comprising the Site or harvesting or scraping any Content from the Site. You are also prohibited from otherwise downloading and reproducing any Content other than in direct connection with your authorized use of the Site and services provided by Matchfield through or in conjunction with the Site.

Limited License

We grant you a limited license to display on your computer, print, download and use the Content that is made available to you through your authorized use of the Site, for your own non-commercial, personal, or education uses only, provided that you do not modify any Content or create any compilation, derivative work or adaptation thereof. No other use is permitted. Without limiting the generality of the foregoing, you may not:

  1. make any commercial use of any Content;
  2. include any Content in or with any product that you create or distribute; or
  3. copy, embed or incorporate any Content into any other web page, publication or materials.

Notwithstanding the foregoing, to the extent that you are visiting the Site after becoming a Job Seeker or Recruiter (as defined in the Terms of Service) you may use the Platform and Content for your own business purposes, including the modification thereof, provided that you not resell them in any form and subject specifically to applicable provisions of the Terms of Service or otherwise them use them in any business or venture that directly or indirectly competes with the Platform or any of the businesses carried on by Matchfield and/or any of its affiliates.

Trade-Marks

“Matchfield” and our logo displayed on the website are trademarks exclusively owned by Matchfield. The trade names names of all other business entities, and their respective product and service names and other brands that are mentioned or displayed on the Site are exclusively owned by their respective owners. The display of trademarks or trade names on the Site does not convey or create any licence or other rights in these trademarks or trade names. Any unauthorized use of any of these is strictly prohibited.

Privacy

Your privacy is very important to us. By using the Site, you are expressly consenting to Matchfield’s privacy statement (which may be accessed by clicking the foregoing hyperlink).

No Warranties

Matchfield does not guarantee or warrant that the Site will be available without interruption or without any errors or omissions, or that the Site and the servers(s) that make it available are free from viruses or other harmful components. THE SITE AND THE CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND. MATCHFIELD, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING THOSE RELATING TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. MATCHFIELD MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE CONTENT, SERVICES, SOFTWARE, TEXT, GRAPHICS, AND LINKS.

Limitation of Liability

IN NO EVENT SHALL MATCHFIELD, ITS SUPPLIERS, OR ANY THIRD PARTIES MENTIONED ON THE SITE BE LIABLE FOR: (I) ANY DAMAGES WHATSOEVER RESULTING FROM THE USE OR INABILITY TO USE THE SITE AND THE CONTENT OR ANY BUSINESS INTERRUPTION RELATING THERETO, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MATCHFIELD IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE FULLEST EXTENT ALLOWED BY LAW, WE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES ARISING OUT OF (I) THE USE OF OR INABILITY TO USE THE SITE OR THE SERVICES, (II) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SITE (III) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SITE OR THE SERVICES, (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR (V) ANY OTHER MATTER RELATING TO THE SITE OR THE SERVICES OFFERED ON THE SITE, EVEN IF MATCHFIELD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITATION TO THE FOREGOING, OUR AGGREGATE LIABILITY IN RELATION WITH THE SITE AND/OR THE PRODUCTS AND SERVICES AVAILABLE THROUGH THE SITE WILL NOT IN ANY EVENT EXCEED US$1,000.00 IN THE AGGREGATE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR IN CERTAIN SPECIFIC CIRCUMSTANCES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU GENERALLY OR IN CERTAIN SPECIFIC CIRCUMSTANCES. IN SUCH JURISDICTIONS, MATCHFIELDS’ LIABILITY IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW.

Hypertext Links

The Site contains links to third party websites. These links are provided solely as a convenience to you and not as an endorsement by Matchfield of the contents on such third-party sites. Matchfield is not responsible for the content, products and/or services of any linked third-party sites and does not make any representations or warranties, either express or implied regarding the content or accuracy of materials on such third party sites. If you decide to access linked third party sites, you do so at your own risk.

Additional Terms of Service

Certain areas of the Site may be subject to additional terms of service which you will be required to accept before accessing those areas, once you become a Job Seeker or Recruiter as those terms are defined in the additional terms of service.

General

Matchfield makes no claim that the Site or the Content may be lawfully viewed or downloaded outside of the United States or Canada. Access to the Site or the Content may not be legal by certain persons or in certain countries. If you access the Site from outside of the United States or Canada, you do so at your own risk and are responsible for compliance with the laws of your applicable jurisdiction.

These Terms of Use are governed by the laws of the Province of Ontario, without respect to its conflict of laws principles. Jurisdiction for any claims arising under these Terms of Use shall lie exclusively with the courts of the Province of Ontario and the Federal Court of Canada located in the city of Toronto.

If any provision of these Terms of Use is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect.

No waiver of any of these Terms of Use by Matchfield will be enforceable unless evidenced in a written instrument executed by an authorized representative of Matchfield and no such waiver will be deemed a further or continuing waiver of such term or condition or any other term or condition.

Except as expressly provided in additional terms or conditions of use for particular areas of the Site, a particular legal notice, or software license or material on particular pages of the Site, these Terms of Use constitute the entire agreement between you and Matchfield with respect to your use of the Site.

TERMS OF SERVICE

Revision date: November 26, 2018

THESE MATCHFIELD TERMS OF SERVICE (THESE “TERMS OF SERVICE“) FORM AN INTEGRAL PART OF THE SUBSCRIPTION SERVICE AGREEMENT (THE “AGREEMENT”) PREVIOUSLY EXECUTED BY FITZII INCORPORATED, CARRYING ON BUSINESS AS MATCHFIELD (“MATCHFIELD”) AND THE ENTITY LISTED IN THE AGREEMENT (“CLIENT”)

  1. Definitions

The following capitalized terms will have the meaning ascribed to them below:

Agreement” has the meaning set forth in the introductory paragraph above.

Candidate” means any individual who has provided contact and job preference information to Matchfield, through the Site or otherwise, which information has been incorporated within the scope of the Services.

Candidate Data” means information received by Matchfield from Candidates, and information generated in conjunction with the receipt, processing, validation and assessment of Candidate résumés and/or job applications and/or the delivery of Services.

Client” means the person or entity that executed the Agreement along with Matchfield.

Client Data” means Client’s information that has been provided to Matchfield through the Site and that resides in Client’s Dashboard including, without limitation, any job postings.

Content” means any content available on the Site or available through use of the Site or any Service and includes, without limitation, text, graphics, images, logos, software, compilations, surveys, reports, listings, or other data aggregation conducted on the Site or materials made available on the Site or in conjunction with the receipt of Services.

Dashboard” means a private area of the Site where Client Data is stored and where client can access same as well as information about the Services.

Matchfield” has the meaning set forth in the introductory paragraph above.

Matchfield Programs” means the software used by Matchfield to operate the Site and provide the Services.

Services” means those employer and candidate matching service that have been procured by Client pursuant to the Agreement for (a) employers and recruiters which allows them to find candidates that are suited for a particular job; and/or (b) candidates and job seekers who are connected with jobs they are interested in; as well as related or ancillary value added services.

Users” means those individuals authorized by Client to use the Services and for whom an account to use the Services has been created.

Capitalized terms that are not defined in these Terms of Service will have the meaning provided to them elsewhere in the Agreement.

  1. Services

Client may register for one of the following two Service models:

(i)  Project: a single recruitment service for a specified job with a start and end date.

(ii) Subscription: provides for ongoing recruitment services for a certain number of “job slots” where each job slot can be filled by one job posting (for a single location) at a time.

  1. Rights Granted

Matchfield hereby grants to Client during the Term a non-exclusive, non-transferable, royalty-free, worldwide right to use the Services solely for its internal business operations and subject to the terms of the Agreement. Client may allow Users to use the Services for this purpose, provided Client is responsible for ensure Users’ compliance with the term and conditions of the Agreement and will be liable for any violation of the foregoing or any other improper conduct by Users. The Services are provided as described in, and subject to, the Service Policies.

Client acknowledges that Matchfield will not deliver a copy of any Matchfield Program and that its access to the Services is exclusively through the Site.

Upon the end of the Agreement or expiration of the Term, Client’s right to access the Dashboard or use the Services shall terminate.

  1. Ownership

Client retains exclusive ownership in and to Client Data. Matchfield or its licensors retain exclusive ownership of the Site, Matchfield Programs, Content and Services, as well as all intellectual property rights therein. Matchfield (or its licensors) retains exclusive ownership to anything developed, generated and/or delivered in conjunction with the Agreement, including all Candidate Data.

  1. Third Party Components

Client acknowledges that receipt of certain Services may require Client’s procurement and use of third party software, which will be specified in the Materials or other written notifications provided by Matchfield from time to time. Client’s right to use such third party software will be governed by the terms and conditions of the third party licensor, as communicated by either Matchfield or such third party licensor.

  1. Restrictions on and Conditions affecting Use of the Services

Client shall not use or permit or facilitate use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) threaten, menace or harass any person; (b) cause damage or injury to any person or property, (c) involve the publication of any material that is false, defamatory, harassing or obscene, (d) violate privacy or personality rights; (e) promote or encourage bigotry, racism, hatred or harm, (f) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (g) constitute an infringement of intellectual property or other proprietary rights, (h) otherwise violate applicable laws; or (i) promote or encourage the breach by someone of an obligation or restrictive covenant.

In addition to any other rights afforded to Matchfield under the Agreement, Matchfield reserves the right to remove or disable access to any material that violates the foregoing restrictions. Matchfield shall have no liability to Client in the event that Matchfield takes any such action.

Client shall not post, or permit use of the Services to post, any the following:

  • advertising of business opportunities, speculative ventures, work from home opportunities, or anything else requiring an upfront investment, payment or purchase;
  • business opportunities that pay commission only unless the posting clearly states that the available job pays commission only and clearly describes the product or service that the job seeker would be selling;
  • any pyramid scheme, “club membership”, distributorship, multi-level marketing opportunity, or sales representative agency arrangement;
  • jobs at adult-oriented businesses (strip clubs, brothels, internet models, etc.) or postings seeking employees for jobs of a sexual nature or involving nudity;
  • jobs that involve illegal activities;
  • deferred pay positions, barters, unpaid internships;
  • any position which Matchfield, in its sole discretion, determines to be inappropriate for the Site.

Matchfield reserves the right to remove any job posting or content from the Site which, in the reasonable exercise of Matchfield’s discretion, does not comply with the above terms, or if any content is posted that Matchfield believes is not in the best interest of Matchfield, its licensors and/or its affiliates.

If at any time during Client’s use of the Services, it makes a misrepresentation of fact to Matchfield or otherwise misleads Matchfield in regard to the nature of its business activities, Matchfield will have grounds to immediately terminate Client’s use of the Services without prior notice or liability.

In addition to the foregoing restrictions, Client shall not:

  • remove or modify any markings or any notice of Matchfield’s or its licensors’ proprietary rights in terms of any materials resulting from the Services;
  • make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such third party access is expressly permitted in the main body of the Agreement for the specific the Services in question);
  • modify, adapt, translate, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to any of the Services;
  • use, disclose, retain, store or otherwise handle any Candidate Data (or any other personal information) in contravention of any privacy laws or other applicable laws; and
  • license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Matchfield Programs or materials available, to any third party other than as expressly permitted under the terms of the Agreement.

The rights granted to Client under the Agreement are also conditional upon the following:

  • the rights of any User licensed to access the Dashboard and use the Services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized User in good faith, in which case the prior authorized User shall no longer have any right to access or use the license);
  • except as expressly provided herein, no part of the Services or Content may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
  • Client shall make every reasonable effort to prevent unauthorized third parties from accessing the Dashboard or Services through any of Client’s User accounts.

Client acknowledges and confirms that export control laws and regulations of Canada and/or the United States and any other relevant local export laws and regulations may apply to the Services and Client’s use of the Services (including technical data) and any deliverables provided under the Agreement. Client shall comply with all such export control laws and regulations (including “deemed export” and “deemed re-export” regulations). Client agrees that no data, information, software programs and/or materials comprising or resulting from Services will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws.

  1. No Warranties; Disclaimers

MATCHFIELD DOES NOT WARRANT OR GUARANTEE THAT THE SITE WILL BE PROVIDED, OR THAT THE SERVICES WILL BE PERFORMED, WITHOUT ERROR OR INTERRUPTION, OR THAT MATCHFIELD WILL CORRECT ALL ERRORS WITH THE SITE OR SERVICES. CLIENT ACKNOWLEDGES THAT MATCHFIELD DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES OR PUBLIC NETWORKS, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, UNAVAILABILITY, LAG AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES AND/OR NETWORKS. MATCHFIELD IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, DAMAGES, LIABILITIES OR OTHER LOSSES RESULTING FROM SUCH PROBLEMS. SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”.

MATCHFIELD, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING THOSE RELATING TO MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MATCHFIELD MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE CONTENT, SERVICES, SOFTWARE, TEXT, GRAPHICS, AND LINKS.

  1. Trial Use of the Services

If Services are provided for trial purposes, as specified in the Agreement, the terms and conditions of the Agreement apply equally. If Client chooses not to convert trial Services into a paid subscription at the end of the trial period, Matchfield may, at Client’s request, and for a period of up to 60 days after the expiration of said trial period, permit Client to access the Services solely to the extent necessary for Client to retrieve Client Data.

  1. Indemnification

Matchfield shall defend Client and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Client Indemnitees”) against any and all demands, claims, actions, and other legal proceedings in which allegations are made that the Matchfield Programs or Content infringes any copyright or trademark in Canada or the United States (each, a “Client Claim”). Matchfield shall indemnify Client Indemnitees for any and all damages, costs and pre and post judgment interest finally awarded against them in regard to a Client Claim. Notwithstanding the foregoing, the foregoing indemnity does not apply to any Client Claim: (i) that relates to any content, component, materials or item that was created by anyone other than Matchfield; (ii) that relates to any use of the Site, Services or Content outside the scope of use identified in Matchfield’s user documentation or Service Policies; (iii) if the Recipient uses a version of the Content which has been modified or is no longer current and the Client Claim could have been avoided by using an unmodified and current version of the Content which was provided to the Client;  based upon the combination of any Service or Content with any content, materials, products or services not provided by Matchfield; or any violation of the Agreement and related requirements or restrictions by Client, any User or any other third party.

Client shall defend Matchfield and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Matchfield Indemnitees”) against any and all demands, claims, actions, and other legal proceedings in which allegations are made that: (i) Client’s (or any User’s) access to the Site and/or use of the Service violates the Agreement and/or any applicable laws including, without limitation, any privacy laws; and/or (ii) any Client Data (or any other Client supplied Content) infringes any copyright or trademark (each, a “Matchfield Claim”). Client shall indemnify Matchfield Indemnitees for any and all damages, costs and pre and post judgment interest finally awarded against them in regard to a Matchfield Claim.

The indemnification obligations set forth above are conditional upon the indemnified party in question does the following:

  • notifies the indemnifying party promptly in writing;
  • provides the indemnifying party with sole control of the defense and any settlement negotiations of the underlying indemnifying claim(s); and
  • provides the indemnifying party such information and assistance as the indemnifying party may reasonably request in terms of the defense or settlement of the indemnified claim.

In the event of a Client Claim, Matchfield may, at its sole discretion, choose to either modify the infringing materials  to be non-infringing (while substantially preserving the utility or functionality of the Matchfield Programs) or obtain a license to allow for continued use of said infringing materials, or if these alternatives are not commercially reasonable, Matchfield may in its sole discretion either terminate: (i) the impacted Services and refund any unused, prepaid fees in regard to such impacted Services; or (ii) terminate the Agreement and refund any unused, prepaid fees in regard to same. This section provides the Client’s exclusive remedy for any infringement claims or damages.

  1. Support Services

No support services are provided under the Agreement except for those specifically provided therein (as the case may be).

  1. Fees and Taxes

Client shall pay for all Services ordered as set forth in the Registration Process. All fees due under the Agreement are non-cancelable and the sums paid non-refundable. Client shall pay any sales, value-added or other similar taxes imposed by applicable law that Matchfield must collect based on the Services Client ordered, except for taxes based on Matchfield’s income. Client acknowledges and confirms that it has not relied on the future availability of any services, programs or updates in entering into the payment obligations in the Agreement.

  1. Termination of Agreement

Client may terminate the Agreement at any time after the Initial Term by sending a “Termination Request” to Matchfield using the Dashboard.

Monthly subscription fees (“Fees”) are non-refundable. Termination of the Agreement will be effective as of the last day for which Client has prepaid Fees. At the end of the Term, all rights to access or use the Dashboard and Services shall end.

If either party breaches a material term of the Agreement and fails to correct the breach within 30 days of written specification of the breach, then the non-breaching party may terminate the Agreement. The non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues to make reasonable efforts to cure the breach.

Matchfield may immediately suspend Client’s (and User’s) access to the Dashboard and Services in the event: (i) Client fails to pay Matchfield any amount under the Agreement and does not cure such breach within the first ten days of the 30 day cure period, or (ii) Client violates sections 6, 9, 11 (other than in the manner provided in clause [i] above) or 13 of these Terms of Use. Any suspension by Matchfield of the Services under this paragraph shall not relieve Client from its obligation to pay Fees or to make any other payment(s) under the Agreement.

At Client’s request, and for a period of up to 60 days after expiration of the Term or termination by Client of the Agreement as permitted under this Section 12, Matchfield will allow Client to access the Dashboard solely to the extent necessary for Client to retrieve and export Client Data. Client acknowledges and confirms that Matchfield has no obligation to retain Client Data and that Client Data may be irretrievably deleted at any time following expiration of a 60 day period from the expiration of the Term, last use of the Services or termination of the Agreement, whichever date is earliest.

Sections 4, 7, 9, 13, 14, 15 and 16 will survive expiration of the Term or termination of the Agreement as well as those other provisions of the Agreement which by their nature are intended to remain in force after expiration of the Term or termination.

  1. No Exclusivity or Restrictions

Client acknowledges and understands that the Services are provided to it on a non-exclusive basis. Client further acknowledges and understands that Matchfield provides Candidates and potential Candidates with the opportunity to subscribe to receive information about job postings and similar career opportunities (“Job Posting Subscriptions”). The Job Posting Subscription service provided by Matchfield to Candidates or potential Candidates is offered independently of Services provided to Matchfield employers and Client acknowledges and understands that Matchfield will continue to provide Candidates with such solicitations and such information regardless of Services provided to Client in regards to any particular Candidate or any hiring decision that Client may make in regards to any particular Candidate.

  1. Confidentiality

From time to time during the Term, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public proprietary and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential” or would reasonably be understood as being proprietary and confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 13; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information and provided further that the Receiving Party is not otherwise required to maintain the confidentiality of such information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights and remedies or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s directors, employees, service providers, contractors, agents, advisors and other representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement and who are bound by confidentiality obligations that are at least as restrictive as those found herein and that extend to such Confidential Information.

If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information of the Disclosing Party, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.

  1. Privacy and Data Protection

In performing the Services, Matchfield shall comply with the Matchfield Privacy Policy, as same may be amended or replaced from time to time, which is incorporated herein by reference.

Matchfield shall maintain the security measures set forth in the Matchfield Security Policy, as same may be amended or replaced from time to time. The Matchfield Privacy Policy and the Matchfield Security Policy are subject to change at Matchfield’s discretion; provided, however, that any such policy changes will not result in a material reduction in the level of protection provided for Client Data during the period for which Fees have been paid.

Client is solely responsible for ensuring that its use of the Services (including, without limitation, the input, uploading or transfer of Client Data complies with all applicable laws including, without limitation, all privacy and data protection laws. Client is also solely responsible for ensuring the accuracy, quality, integrity, legality, reliability, appropriateness and all required consents and authorizations regarding Client Data.

  1. Limitation of Liability

NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, AGGRAVATED, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), LOSS OF DATA, LOSS OF DATA USE, FAILURE TO REALISE EXPECTED SAVINGS, LOSS OF REPUTATION, LOSS OF BUSINESS OPPORTUNITY, OR DEPRECIATION OF GOODWILL. WITHOUT LIMITATION TO THE FOREGOING, MATCHFIELD’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE LOWER OF: (I) THE TOTAL AMOUNTS ACTUALLY PAID TO MATCHFIELD (LESS ANY REFUNDS, CREDITS, ABATEMENTS OR REBATES) IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM PURSUANT TO THE AGREEMENT; OR (II) THE MONTHLY SUBSCRIPTION FEE ACTUALLY PAID TO MATCHFILED FOR THE MONTH DURING WHICH THE EVENT GIVING RISE TO SUCH CLAIM FIRST OCCURRED.

  1. Miscellaneous

Entire Agreement. The Agreement, together with the documents that are incorporated into the Agreement by reference (including, without limitation, any reference to information contained in a URL or referenced policy), is the entire agreement of the parties with respect to the subject matter contained therein, and that the Agreement supersedes all prior or contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.

It is expressly agreed that the terms of the Agreement will supersede the terms in any purchase order or other non-Matchfield document and no terms included in any such purchase order or other non-Matchfield document shall replace, supplement or supersede the terms and conditions of the Agreement.

Amendments/Waivers. The Agreement may not be modified and the rights and remedies may not be altered or waived except in a written instrument signed by an authorized representatives of both Client and of Matchfield.

Invalidity. If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. In any such instance, the provision will be deemed to have been amended by the parties only for such jurisdiction only to such extent required to make such provision enforceable in such jurisdiction while maintaining as closely as possible the original intent of the parties.

Relationship of the Parties. Matchfield is an independent contractor and the parties agree that no partnership, joint venture, or agency relationship exists between them and neither party shall state or infer that it has the ability to bind the other in any capacity. Each party will be solely responsible for paying its own employees, including employment related statutory deductions, premiums and benefits.

Governing Laws. The Agreement is governed by the laws of the Province of Ontario and the federal laws of Canada that apply in the province of Ontario.

Choice of Forum. The parties agree that the courts located in the City of Toronto, Ontario, Canada will have exclusive jurisdiction in terms of any dispute relating to the Agreement or the subject matter thereof provided, however, that in the event of any misappropriation of Confidential Information or violation of any intellectual property rights outside of Ontario by a party, the other party will be free to commence legal proceedings in the jurisdiction(s) in which such misappropriation or violation has or is taking place.

Waiver of Jury Trial. Each Party acknowledges that any controversy that may arise under the Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated hereby.

Successors and Assigns. The Agreement is binding on and inures to the benefit of the parties to the Agreement and their respective successors and permitted assigns.

No Third-Party Beneficiaries. The Agreement benefits solely the Client and Matchfield and their respective permitted successors and assigns and nothing in the Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.

Notices. Any notice under this agreement to Matchfield will only be valid if provided in writing by personal delivery or delivery by a reputable overnight courier at: Fitzii Incorporated, cob as Matchfield, 610 Chartwell Rd., Suite 101, Oakville, ON L6J 4A5; Attention: General Counsel, Legal Department. Matchfield may give notice applicable to Matchfield’s customer base by means of a general notice on the Site (including, without limitation, the Dashboard or by electronic mail to Client’s e-mail address on record in Matchfield’s account information or by written communication sent by first class mail or pre-paid post to Client’s address on record in Matchfield’s account information. Each party may change its contact coordinates by providing written notice of such change to the other party.

Assignment/Delegation. Client may not assign the Agreement or any of its rights and remedies under the Agreement to any third party. Matchfield may freely assign the Agreement, as well as any rights and remedies under the Agreement, to any third party by providing written notice of such assignment to Client. Matchfield may delegate performance of any or all of its obligations or exercise of any task contemplated under the Agreement to one or more service providers.

Limitation Period. Except for actions for nonpayment or breach of Matchfield’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action first arose.

Audit. Matchfield may audit Client’s use of the Services by way of remote monitoring. Client agrees to cooperate at its sole cost with any such audit and provide reasonable assistance and access to information and personnel. Any such audit shall not unreasonably interfere with Client’s normal business operations. In the event an audit reveals use of the Services beyond any limit or threshold, or use of Services not subscribed for by Client, Client shall pay Matchfield within 30 days of written notification any fees applicable to its use of the Services in excess of those procured by Client under the Agreement.

Force Majeure. Neither party will be responsible for any failure or delay of performance of any obligation under the Agreement if caused by: (i) an act of war, hostility, sabotage or terrorism; (ii) an act of God; (iii) electrical, internet, or telecommunication outage that is not caused by the obligated party; (iv) government restrictions (including the denial or cancellation of any export or other license); (v) labour shortage, strike or lock-out; and/or (vi) any other event outside the reasonable control of the obligated party. A party affected by a force majeure event shall use reasonable efforts to mitigate the effect of same in terms of performance of its obligations under the Agreement. If a force majeure event continues for more than 30 days, either party may terminate the Agreement upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Client’s obligation to pay any Fees or other amounts owed under the Agreement.

Statistical Information. Matchfield may compile statistical information related to the performance of the Services, and may monetize or make such information publicly available in an anonymized, aggregated form, provided that such information does not incorporate Client Data and/or otherwise allow it to be associated with Client. Matchfield retains all intellectual property rights in such aggregated and/or statistical information.

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