THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS APPLICABLE TO THE USE OF TYKANS'S WEB-BASED APPLICATION AND RECEIPT OF RELATED SERVICES.
The terms and conditions of this agreement (the "Agreement") will govern the relationship between Tykans Group Inc. ("Tykans") and the individual, corporation, firm, partnership, company or other entity ("Client") who registers to use the Tykans Application in connection with the use of the same and in connection with all related services.
Terms that are initially capitalized herein are defined in the above paragraph or in the last section of this Agreement.
By completing the registration process and by clicking the "I Agree" button, you, the individual completing the registration process, hereby represent and warrant to Tykans, and acknowledge that Tykans is relying upon this representation and warranty, that you are authorized by Client to bind Client to this Agreement.
IF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE NOT ACCEPTABLE TO CLIENT, DO NOT CLICK ON THE "I AGREE" BUTTON.
In order to use the Tykans Application, Client must register to use the Tykans Application and on successful registration, Client may use the Tykans Application.
Tykans hereby grants, and Client hereby accepts, subject to the terms and conditions of this Agreement, a non-exclusive and non-assignable license to access and use the Tykans Application. Client may reproduce and distribute the Documentation solely as reasonably needed in connection with its use of the Tykans Application. Client may only permit its Personnel to access and use the Tykans Application. Client shall not permit any other party to access or use the Tykans Application through use of the userid/password or otherwise. Client will be solely responsible for all activity of any party using its userid/passwords. Client is solely responsible for ensuring that the userid/passwords are kept secret. Tykans may monitor Client's use of the Tykans Application to ensure compliance with this Agreement. No copy of any software or any source code will be made available or delivered to Client. Client shall ensure that all computers, systems and connectivity used to access the Tykans Application meet the system requirements as published by Tykans from time to time.
Any breach of the terms and conditions of this Agreement by any of Client's Personnel shall be deemed to be a breach of the terms and conditions of this Agreement by Client.
Client shall pay the Fees to Tykans as directed by Tykans as set out on the website associated with the Tykans Application. Tykans will invoice Client for the access, maintenance and support fees on an annual basis prior to the start of the year of service, which shall not be refundable except as provided herein. Tykans may invoice Client for any service fees and data storage fees on a monthly, quarterly or annual basis in arrears. Client shall pay such invoices within fifteen (15) days of receiving same. Tykans shall be entitled to deny Client access to their accounts, Tykans Application and Client Data in the event that any amount payable hereunder is past due. Client shall be responsible for paying all sales, use, excise, value-added and other taxes (except those which relate to the income of Tykans) or governmental charges imposed on the use of or access to the Tykans Application or Documentation. Tykans may change the Fees by providing at least thirty (30) days written notice of same to Client. In the event Client is not satisfied with the same, Client shall immediately provide written notice of termination, which shall be Client's sole recourse and remedy in the event Client is dissatisfied with the amended Fees.
Client may not, directly or indirectly, use or operate the Tykans Application for the benefit of any third party in any type of service outsourcing, application service provider or service bureau capacity.
Client shall not in respect of the Tykans Application:
Client shall not attempt to circumvent any security measure implemented in the Tykans Application or attempt to gain access to any portion of the Tykans Application other than that which is needed to access and use the Tykans Application as contemplated in the Documentation.
In the event any activity of Tykans arises in connection with any activities of Client or any Client Personnel which is in breach of this section, then Client will pay Tykans its fees for the time spent by Tykans' personnel on such activities on a time, expense and materials basis at Tykans' standard rates for the same.
Tykans shall provide telephone and email support with respect to the use of and access to the Tykans Application and Documentation during the hours of 9:00 am to 5:00 pm MST Monday to Friday, excluding statutory holidays observed in Calgary, Alberta. From time to time, Tykans may change the hours and days of support in its complete discretion.
Support means initial support and debugging and problem solving in relation to matters raised by Client including: (a) answering technical inquiries regarding the Tykans Application features and performance, configuration and use; (b) clarification of the Documentation; (c) provision of problem diagnostic services for identifying problems; and (d) attempting problem resolution.
Tykans reserves the right to limit this support in the event Client is using a material amount of this support. Only those employees of Client who are familiar with the Documentation and the Tykans Application shall be entitled to make use of the support. At Tykans' option, Client shall designate one or more of its employees as the sole point of contact for all support. Such selected employees shall be subject to Tykans' approval.
While Client is current in its Fees, Tykans shall provide maintenance. Maintenance shall include bug-fixes and workarounds to errors and bugs in the Tykans Application. Tykans shall use commercially reasonable efforts (taking into account the severity of the error) to correct any reproducible errors in the Tykans Application and Documentation. Upon identification of any error, Client shall notify Tykans of such error and provide Tykans with a description of the problem and any reasonable assistance as requested by Tykans. Under no circumstances does Tykans warrant or represent that all errors or defects can or will be corrected. Tykans will have no obligation to correct any defect or error that it is unable to reproduce or any defect or error that is not material. Client acknowledges and agrees that Tykans' sole obligation and liability and Client's sole remedy and recourse in connection with any defect or error in the Tykans Application is for Tykans to use commercially reasonable efforts to correct the same as described in this paragraph.
Tykans shall not be responsible for: (i) correcting any errors or defects arising out of the operation of the Tykans Application by Client in an environment other than as set out in the Documentation; (ii) use of the Tykans Application in a manner other than as contemplated in the Documentation; or (iii) any cause resulting from operator error or the failure of an operator to follow any instructions or requirements set out in the Documentation.
For errors or defects arising in connection with any third party software or data incorporated into the Tykans Application, Tykans' sole obligations will be to notify the vendor of that software or data of the errors or defects and to install any fixes that are provided.
From time to time Tykans and its Suppliers may make enhancements to the Tykans Application. At Tykans' option, Tykans may make those enhancements available without additional cost to Client or Tykans may make those enhancements available to Client at an additional charge.
At the reasonable request of Tykans, Client will install and configure firewalls and other security measures.
Tykans will use industry standard security tools, technologies and processes to protect the Tykans Application and Client Data against unauthorized access. However, Client acknowledges and agrees that applications and systems which are made available over the Internet are inherently insecure against motivated individuals and Tykans and its Suppliers shall have no obligation or liability to Client for any breach of such firewalls or security measures as a result of same.
Client shall obtain any consents required to the placement of the Client Data on the Tykans Application, the processing of the Client Data by the Tykans Application and to Tykans' handling of the Client Data as contemplated herein.
Client hereby authorizes (and hereby represents that it has the authority to authorize) Tykans to conduct all activities as contemplated under this Agreement including, without limitation, storing, reproducing and processing the Client Data and the use, disclosure and transmission of the same pursuant to and in connection with the Tykans Application and such other tasks, duties or activities reasonably necessary for Tykans to carry out its obligations pursuant to this Agreement.
Tykans and its service provider have in place a disaster recovery plan to restore the Tykans Application and Client Data in the event of a disaster. There are no assurances that the disaster recovery plan will be 100% effective (including the fact that backups are only made periodically) and Tykans and its Suppliers shall have no liability to Client for any loss of use of the Tykans Application or any Client Data or loss or corruption of any Client Data.
In the event that Client wishes to obtain a copy of some or all of the Client Data Tykans will provide the same to Client in electronic form. Tykans may charge a fee for this service.
The Tykans Data is compiled from various sources. Tykans and its Suppliers provide no warranty regarding the accuracy or completeness of this information. Tykans and its Suppliers shall have no liability or obligation to Client resulting from the use or interpretation of this data and information, or from any decisions made based on this data and information.
Tykans agrees to not use or disclose any Personal Information contained in the Client Data other than in the furtherance of Client's use of the Tykans Application or as might otherwise be permitted or required by law. Tykans engages Suppliers to assist Tykans with its services and Tykans will require its Suppliers agree to comply with privacy laws.
"Confidential Information" means any information of a party (the "disclosing party") and includes, without limitation, any business, marketing, technical and scientific information, trade secrets, processes, designs, data, formulae, plans, prototypes, specifications, know-how, improvements, inventions (whether patentable or not), techniques, software, source code, customer lists, research, business opportunities, agreements and other information related to or arising from the activities contemplated in this Agreement and which may be in any form or medium and whether or not designated as confidential (or like designation). Notwithstanding the forgoing, Confidential Information shall not include any information that (a) is in the public domain without such disclosure being as a result, directly or indirectly, of a breach of the obligations of confidence, secrecy or non-use by the other party (the "receiving party") or; (b) was previously known to the receiving party, reasonable proof of which lies upon the receiving party; or (c) was received by the receiving party without any obligation of confidence from a source (other than the disclosing party) lawfully having the right to disclose such information; or (d) is released or disclosed to the public by the disclosing party.
Tykans hereby acknowledges and agrees that the Client Data is proprietary to Client. Accordingly, Tykans agrees to treat the Client Data as Confidential Information in accordance with the confidentiality requirements and conditions set forth below. The Tykans Data is proprietary to Tykans and its Suppliers. Client shall treat all Tykans Data as the Confidential Information of Tykans in accordance with the confidentiality requirements and conditions set forth below.
Client acknowledges and agrees that the security mechanisms incorporated in the Tykans Application have security limitations and that applications and systems which are made available over the Internet are inherently insecure against motivated individuals and Tykans and its Suppliers shall have no obligation or liability to Client for any breach of such security mechanisms protecting Client Data as a result of same.
A receiving party shall be bound by an obligation of confidence to the disclosing party in respect of any Confidential Information of the disclosing party. In respect of such Confidential Information, the receiving party shall not: (a) except as provided in the next paragraph, disclose, either directly or indirectly, any such Confidential Information, or any part thereof, other than to its employees and third party who have a need to know the Confidential Information, and (b) shall not use any such Confidential Information, or any part thereof, for any purpose except as specifically contemplated in this Agreement.
If a receiving party becomes legally compelled (by oral questions, interrogatories, requests for confidential information or documents, subpoena, civil investigative demand or otherwise) to disclose any Confidential Information of the disclosing party, the receiving party shall provide the disclosing party with prompt written notice of same so that the disclosing party may, at the disclosing party's option, either seek a protective order, other appropriate remedy or to obtain reliable assurances that the Confidential Information will be accorded confidential treatment. The receiving party shall provide all reasonable assistance with same.
Client agrees that title to and ownership of the Tykans Application and Documentation and any modifications or upgrades made thereto (whether at the suggestion or request of Client or otherwise) and all intellectual property rights therein shall at all times be held by Tykans and its Suppliers.
Client, shall not have any right, title or ownership interest in the Tykans Application or the Documentation except the limited right to access and use the Tykans Application in accordance with the terms and conditions set out in this Agreement.
Client may not, directly or indirectly, create derivatives, modify, decompile or reverse engineer the Tykans Application or do anything to attempt to reveal, generate or obtain the source code for the Tykans Application.
Tykans does not represent or warrant that all defects and errors in the Tykans Application, the Services and Documentation can or will be corrected. Other than the requirement to correct defects and errors in accordance with this Agreement, Tykans and its Suppliers shall have no liability or obligation to Client or any third party in the event of any defect or error or any omission in the Tykans Application, the Services or Documentation.
THE TYKANS APPLICATION, SERVICES AND DOCUMENTATION ARE PROVIDED STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS OTHERWISE EXPLICITLY SET OUT HEREIN TYKANS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS CONCERNING THE TYKANS APPLICATION, THE SERVICES AND DOCUMENTATION, INCLUDING ANY AND ALL WARRANTIES AND CONDITIONS OF DESIGN, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, PERFORMANCE AND ANY AND ALL WARRANTIES AND CONDITIONS THAT MIGHT OTHERWISE ARISE DURING THE COURSE OF DEALING, CUSTOM OR TRADE USAGE AND THOSE WHICH MAY BE IMPLIED BY STATUTE.
UNDER NO CIRCUMSTANCES SHALL TYKANS OR ANY OF ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, INTERRUPTION OF BUSINESS OR RELATED EXPENSES INCURRED OR SUFFERED BY CLIENT WHICH MAY ARISE IN CONNECTION WITH THE USE OR INABILITY TO USE THE TYKANS APPLICATION, SERVICES OR DOCUMENTATION, OR ANY DEFECT OR ERROR IN THE TYKANS APPLICATION, SERVICES OR DOCUMENTATION, WHETHER OR NOT TYKANS OR ANY OF ITS SUPPLIERS WAS TOLD OF OR KNEW OF OR OUGHT TO HAVE REASONABLY KNOWN OF THE POSSIBILITY OF SUCH LOSS, DAMAGE OR INJURY AND INCLUDING BUT NOT LIMITED TO THOSE RESULTING FROM DEFECTS IN THE TYKANS APPLICATION, SERVICES OR DOCUMENTATION OR LOSS OR INACCURACY OF DATA OF ANY KIND OR INCORRECT RESULTS PRODUCED BY THE TYKANS APPLICATION, SERVICES OR DOCUMENTATION.
TYKANS'S AND ITS SUPPLIER'S COLLECTIVE LIABILITY UNDER THIS AGREEMENT AND IN CONNECTION WITH THE USE OF THE TYKANS APPLICATION, DOCUMENTATION AND THE SERVICES, OR ANY DEFECT OR ERROR IN THE TYKANS APPLICATION, SERVICES OR DOCUMENTATION, UNDER ANY AND ALL CIRCUMSTANCES, ARISING IN ANY MANNER WHATSOEVER, SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY CLIENT TO TYKANS UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE FINAL ACT OR EVENT WHICH GAVE RISE TO ANY SUCH LIABILITY. ALL SUCH LIABILITIES SHALL, IN AGGREGATE, BE SUBJECT TO THE DESCRIBED LIMITATION. THIS LIMITATION SHALL APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND OTHER TORTS, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
FOR A VARIETY OF REASONS THERE MAY BE DEFECTS AND ERRORS IN THE TYKANS APPLICATION AND THEREFORE THE TYKANS APPLICATION MAY ONLY BE USED AS A TOOL TO PROVIDE PRELIMINARY GUIDANCE ONLY, WHICH MUST BE FOLLOWED BY GUIDANCE FROM A QUALIFIED PROFESSIONAL TO VERIFY ANY CONCLUSIONS, RESULTS OR INFORMATION PROVIDED BY THE TYKANS APPLICATION. CLIENT HEREBY AGREES TO IMPLEMENT PROCEDURES AND SYSTEMS TO PROTECT INDIVIDUALS FROM INJURY, ILLNESS AND DEATH AND FROM DAMAGE AND LOSS IN THE EVENT OF ANY ERROR OR DEFECT IN THE TYKANS APPLICATION, INCLUDING WITHOUT LIMITATION:
TYKANS AND ITS SUPPLIERS SHALL HAVE NO LIABILITY OR OBLIGATION TO CLIENT OR ANY PERSONNEL OR ANY OTHER INDIVIDUAL OR ANY THIRD PARTY ARISING, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, FROM ANY FAILURE TO IMPLEMENT ALL OF THE FOREGOING OR ANY INJURY, ILLNESS OR DEATH OF ANY INDIVIDUAL OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH, IN ANY MANNER WHATSOEVER, THE TYKANS APPLICATION OR ITS USE.
OTHER THAN INSTANCES WHERE TYKANS IS OBLIGATED TO INDEMNIFY CLIENT AS SPECIFIED IN THE TYKANS INDEMNIFICATION SECTION BELOW, CLIENT AGREES TO BE LIABLE TO, AND TO INDEMNIFY, DEFEND AND HOLD HARMLESS, TYKANS AND ITS SUPPLIERS AND THEIR OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES FROM ANY AND ALL DAMAGES, CLAIMS, LOSSES, EXPENSES AND COSTS (INCLUDING ANY LEGAL COSTS ON A SOLICITOR AND HIS OWN CLIENT BASIS) WHICH MAY ARISE IN ANY MANNER FROM ANY CLAIM, DEMAND OR CAUSE OF ACTION WHATSOEVER THAT MAY ARISE IN CONNECTION WITH, IN ANY MANNER WHATSOEVER, CLIENT'S USE OF OR INABILITY TO USE THE TYKANS APPLICATION, THE DOCUMENTATION OR THE SERVICES OR ANY DEFECT OR ERROR IN THE TYKANS APPLICATION, THE DOCUMENTATION, TYKANS DATA OR THE SERVICES, HOWSOEVER SUCH CLAIM OR ACTION SHALL HAVE OCCURRED OR AROSE AND CLIENT SHALL DEFEND OR SETTLE ALL CLAIMS AND ACTIONS BROUGHT AGAINST ANY OF THE FOREGOING BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY PERSONNEL OR ANY OTHER INDIVIDUALS OR ANY THIRD PARTIES. CLIENT SHALL NOT ENTER INTO ANY SUCH SETTLEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF TYKANS, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
Tykans shall defend Client in any suit or proceeding or threatened suit or proceeding brought against Client based solely on a claim that the Tykans Application or Documentation infringes any enforceable copyright, trademark or trade secret right of any third party in Canada but only if: (a) Client shall notify Tykans in writing of any such suit or proceeding or threatened suit or proceeding promptly after Client first learns of such suit or proceeding or threatened suit or proceeding; and (b) Client shall provide, at no cost, such reasonable assistance and co-operation as Tykans may reasonably request from time to time in connection with the defense of any such suit or proceeding or threatened suit or proceeding. Tykans may either defend or settle such claim. Tykans agrees to pay such damages and costs finally awarded against Client or payable pursuant to a settlement agreement in connection with such suit or proceeding. Tykans shall have complete control over any such suit or proceeding including, without limitation, the right to settle on behalf of Client on any terms Tykans deems desirable (in the sole exercise of its discretion) so long as it is at no cost to Client. Client shall have the right to be independently represented by counsel of its own choice and at its own cost. Client shall not settle any such claim without Tykans' prior written consent, which consent may be unreasonably withheld.
If the use of any of the Tykans Application or the Documentation is enjoined as a result of any action or is likely to be enjoined in Tykans' reasonable opinion, Tykans shall, at its sole option and expense either: (a) obtain for Client the right to continue using the Tykans Application or Documentation; or (b) modify the Tykans Application or Documentation so that it no longer infringes; or (c) provide Client with reasonable alternate software and systems, as applicable, providing substantially similar features, functions and capability; or (d) if none of the foregoing are deemed to be commercially reasonable options in the sole discretion of Tykans, terminate this Agreement and Client shall cease using the Tykans Application and Documentation immediately.
The foregoing sets out the entire liability of Tykans and its Suppliers and the sole obligations of Tykans and its Suppliers to Client in respect of any claim that the Tykans Application or Documentation infringes any third party rights. Notwithstanding anything else herein, Tykans shall have no obligation or liability with respect to any third party software or data which may be incorporated into the Tykans Application infringes any third party rights.
Tykans shall have no liability hereunder for infringement claims based upon use by Client of the Tykans Application or Documentation other than use as contemplated in this Agreement and the Documentation.
The term of this Agreement shall commence on the date the Client registers and shall continue for a one (1) year period. In the event that Tykans or Client do not provide notice of termination at least thirty (30) days prior to the end of the then current term, this Agreement will automatically renew for additional one (1) year periods.
This Agreement may be terminated by the non-defaulting party if any of the following events of default occur: (1) a party materially fails to perform or comply with this Agreement or any provision hereof; (2) a party becomes insolvent or confirms in writing its inability to pay its debts as they mature or makes an assignment for the benefit of creditors; (3) a petition under any foreign or Canadian bankruptcy act, receivership statute or the like, as they now exist or as they may be amended, is filed by a party; or (4) such a petition is filed by any third party or an application for a receiver is made by anyone and such petition or application is not resolved in favor of the party within ninety (90) days. Such termination shall be effective thirty (30) days after notice of termination is delivered to the defaulting party if the defaults have not been cured within such thirty (30) day period.
Tykans may terminate this Agreement by providing at least ninety (90) days notice of termination in the event Tykans decides that it no longer wishes to make the Tykans Application available to any of its clients.
In the event of a change of Fees as provided herein and Client is not satisfied with the same Client shall give written notice of termination and such termination shall be effective immediately before such change in Fees is to become effective on Client. In the event such notice is immediately given then such changes shall not be effective in respect of Client during such thirty (30) days.
In the event: (i) Client terminates in accordance with the immediately above paragraph; (ii) Tykans provides termination notice because it is no longer going to provide the Tykans Application; (iii) Client terminated due to an Tykans default; or (iv) Tykans terminates because the Tykans Application infringes third party rights then Tykans shall return a pro rata portion of any annual Fee that has been paid by Client which represent the portion of the period after termination that the annual Fee covered, if any.
On termination of this Agreement, howsoever terminated, Client shall cease and desist all use of the Tykans Application and Documentation and all licenses granted pursuant to this Agreement shall immediately terminate. Provided Client has paid all Fees that have been invoiced, Tykans shall grant to Client limited access thereafter sufficient for Client to retrieve Client Data, which shall be done as expeditiously as possible, but in no event beyond sixty (60) days following such termination. Alternatively, Tykans may copy the Client Data to a media and deliver the same to Client. The Client Data will be provided or made available in CSV format (without the data structure). Tykans shall be entitled to permanently delete the Client Data at any time after sixty (60) days from termination of the Agreement. Client shall be responsible for all fees that Tykans may charge for such retrieval, which shall be reasonable. Tykans may require advanced payment of an estimate of those fees.
On termination, each party shall return to the other party all property and Confidential Information of that other party. At the direction of Tykans, Client shall delete or destroy all copies of the Documentation.
Client agrees and acknowledges: (i) that Tykans has set its prices and the parties have entered into this Agreement in reliance on the warranty disclaimer, liability disclaimer, limitations of liability and indemnity provisions set forth herein; (ii) that the same reflect an agreed-to allocation of risk between the parties (including the risk that a remedy may fail its essential purpose); and (iii) that the same forms an essential basis of the bargain between the parties. Client agrees and acknowledges that Tykans would not have been able to provide access to and use of the Tykans Application at the amount charged on an economic basis without such allocations of risk.
Survival. The rights and obligations under Security, Data, Privacy, Confidentiality, Title, Warranty Disclaimer, Limitation of Liability and Liability Disclaimer, Errors and Defects, Client Indemnification, Tykans Indemnification, Default and Termination, Basis of Bargain, Survival and Attornment shall survive the termination of this Agreement for whatever reason. Termination does not relieve any party of any liability accruing at the date of termination including, without limitation, any fees due.
Notices. Any notice, direction or other communication given regarding the matters contemplated by this Agreement must be in writing, sent by personal delivery, courier or facsimile and addressed:
|to Tykans at:|
|to Client at the address provided during the registration process.|
A notice is deemed to be given and received: (i) if sent by personal delivery or same day courier to Client, on the date of delivery if it is business day and the delivery was made prior to 4:00 p.m. (local time in place of receipt) and otherwise on the next business day; (ii) if sent by overnight courier to Client, on the fifth business day following delivery of the notice to the courier; or (iii) if sent by facsimile, on the business day following the date of confirmation of transmission by the originating facsimile.
A party may change its address for service from time to time by providing a notice in accordance with the foregoing. Any subsequent notice must be sent to the party at its changed address.
Notwithstanding the foregoing, Tykans may give notice to Client regarding a change of Fees by either posting notice of the same on the login page or landing page after login or by email to a representative of Client.
Suppliers. All Suppliers shall be entitled to all remedies, disclaimers of warranty, disclaimers of liability, limitations of liability and other provisions herein which indicate as being in favor of Suppliers, including without limitation, under the Warranty Disclaimer, Limitation of Liability and Liability Disclaimer, Errors and Defects and Client Indemnification provisions. Client agrees that all Suppliers shall be, as applicable: (i) entitled to raise any such disclaimers of warranty, disclaimers of liability and limitations of liability in defense of any claim by Client; and (ii) entitled to any such remedy. Client agrees that each Supplier shall be a third party beneficiary under this Agreement for the sole purposes of the foregoing and that Suppliers would not be suppliers in connection with the Tykans Application and/or the Services if they were not entitled to the benefits of the foregoing.
Waiver. A party's failure or delay in exercising any right under this Agreement will not operate as a waiver of that right.
Headings. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions.
Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties and supersede and cancel all previous negotiations, agreements, commitments and writings in respect of the subject-matter hereof and there are no understandings, representations, conditions made or assumed by the parties, other than those expressly contained in this Agreement.
Severability. If any term, covenant or condition of this Agreement or the application thereof to any party or circumstance shall be invalid or unenforceable to any extent the remainder of this Agreement and the application of such term, covenant or condition to a party or circumstance other than those to which it is held invalid or unenforceable shall not be affected thereby and each remaining term, covenant or condition of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law.
Governing Law. This Agreement will be governed by and interpreted and enforced in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein.
Attornment. The parties do hereby agree to submit and attorn to the exclusive jurisdiction of the Courts of Alberta for all matters arising out of or relating to this Agreement. Notwithstanding the foregoing, any party may apply to any court of competent jurisdiction for any equitable relief by way of restraining order, injunction, decree, specific performance, mandatory injunction or otherwise where damages could not adequately be compensated by monetary award and where the Courts of Alberta would not have adequate jurisdiction to grant an effective equitable remedy.
Rights and Remedies. The rights and remedies of a party hereunder are cumulative and no exercise or enforcement by a party of any right or remedy hereunder shall preclude the exercise or enforcement by the party of any other right or remedy hereunder or which the party is otherwise entitled by law or equity.
In this Agreement, the following terms shall have the indicated meaning:
"Tykans Data" means any data or electronic files which Tykans makes available to Client but Tykans Data shall not include any Client Data.
"Tykans Application" means any computer systems and related coding and software and infrastructure providing functionality employed in connection with Tykans' messaging, billing and e-consult web-based application that Tykans. The Tykans Application shall also include any data and electronic files which Tykans employs in connection with the Tykans Application, including the Tykans Data, but shall not include any Client Data.
"Client Data" means any data and electronic files which Client creates on or provides to the Tykans Application. Client Data shall not include any portions that consist of, incorporates or is based on the Tykans Data.
"Documentation" means all end user manuals, documentation and other related materials that Tykans makes available and which pertains to the use of the Tykans Application.
"Fees" means the fees for access, maintenance and support, data storage and service set out on the website associated with the Tykans Application.
"Personal Information" means any information about any identifiable individual including, without limitation, any information that may relate to the information of any Personnel.
"Personnel" means any employee of Client or any other individual, whether a consultant or independent contractor or any employee of another company that has been engaged by Client in connection with Client's use of the Tykans Application.
"Service" means any service provided for the benefit of Client in connection with this Agreement or in connection with the Tykans Application including, without limitation, the maintenance and support services and "Service" also includes the functionality of and the computer processing provided by the Tykans Application.
"Supplier" means any licensor, supplier or service provider that: (i) provides any services in connection with the Tykans Application or any Services, (ii) developed or licenses any part of the Tykans Application; or (iii) provided any data or information in connection with the Tykans Data.