Master Services Agreement (MSA)

THIS AGREEMENT AND ALL POLICIES, GUIDELINES, AND DOCUMENTS REFERENCED AND INCORPORATED HEREIN (“AGREEMENT”) ARE COLLECTIVELY THE TERMS AND CONDITIONS OF USE OF THE INFINITE CANVAS INC. WEBSITE, PLATFORM, SOFTWARE, AND ALL RELATED PRODUCTS AND SERVICES. THIS AGREEMENT INCLUDES IMPORTANT LEGAL PROVISIONS THAT AFFECT YOU AND/OR YOUR ENTERPRISE’S RIGHTS AND OBLIGATIONS THAT MUST BE READ AND ACCEPTED.

BY USING THE INFINITE CANVAS WEBSITE, ACCOUNTS, PLATFORM, SOFTWARE, AND/OR ANY RELATED PRODUCTS OR SERVICES, ENTERPRISE AND ALL ITS USERS AGREE TO BE BOUND BY THIS AGREEMENT AND ALL REVISIONS, UPDATES, AND/OR CHANGES THAT CANVAS MAY PUBLISH FROM TIME TO TIME. EACH TIME ENTERPRISE OR ANY OF ITS USERS ACCESS OR USE ANY OF THE FOREGOING, ENTERPRISE REAFFIRMS THIS AGREEMENT AND ANY REVISIONS, UPDATES, AND/OR CHANGES, AND ALL REPRESENTATIONS AND WARRANTIES AND COVENANTS.

ENTERPRISE AND ALL ITS USERS ACKNOWLEDGE AND ACCEPT THE PRIVACY POLICY FOUND HERE AND RECOGNIZE AND AGREE THAT SUCH PRIVACY POLICY IS ONLY REFERENCED HEREIN AND IS NOT PART OF THIS AGREEMENT.

IF ENTERPRISE OR ANY USER DOES NOT UNDERSTAND, ACCEPT, AND AGREE TO THE TERMS OF THIS AGREEMENT, THEN ENTERPRISE AND SUCH USER MUST NOT ACCESS NOR USE THE INFINITE CANVAS WEBSITE, PLATFORM, SOFTWARE, AND/OR ANY RELATED PRODUCTS OR SERVICES.

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, ENTERPRISE AND USER AGREE THAT DISPUTES BETWEEN USER, AND/OR ENTERPRISE, AND INFINITE CANVAS WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND USER AND ENTERPRISE WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

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1. Enterprise Terms and Conditions

1.1 Agreement Scope; Effective Date. The terms and conditions described below in this agreement and in all end user license agreements, terms of use, policies, schedules, exhibits, and/or other documents mentioned and incorporated herein (collectively, the “Agreement”) are a binding legal contract between the Enterprise (as defined below) that uses the Infinite Canvas Inc. Website, Account, Platform, Software, and/or any related products or services (“Canvas Services”) and Infinite Canvas Inc., a Delaware corporation, with an office at 527 Howard St, Floor 2 San Francisco, CA 94105 United States (“Canvas”). When Enterprise and/or its authorized User initiate access or use of the Canvas Services, then Enterprise agrees to be bound by the terms and conditions of this Agreement as of that date, or such date as may be set forth in a mutually executed Order Form (the “Effective Date”).

1.2 Changes and Amendments. Canvas may at any time, in its sole discretion, amend or change this Agreement or any part of it, by posting on the Canvas Website a revised version. Canvas will provide reasonable advance notice of any amendment that includes a substantial change, by providing notice of such a substantial change on the Canvas Website and/or sending Enterprise notice by email. If any change in the Canvas Fees (as defined below) is a substantial and permanent increase, then Canvas will provide at least thirty (30) days advance notice of the increase. Any revisions and/or modifications of this Agreement will take effect on the later of the date of posting or the noted effective date.

2. Definitions

Capitalized terms not defined below or above have the meanings set forth elsewhere in this Agreement.

2.1 “Account” means a login-accessed portion of the Canvas Website that may allow access to the Canvas Platform and/or other unique functionality, and to which account Enterprise and/or a User (as defined below) is granted access by (i) registering a unique username, password, and Profile (as defined below), (ii) agreeing to unique terms and conditions, and (iii) receiving an approval of registration from Canvas.

2.2 “Authorized Enterprise User” has the meaning set forth in Section 3 below.

2.3 “Canvas Fees” shall have the meaning set forth in Section 5 of this Agreement.

2.4 “Canvas Platform” means the proprietary platform and functionality of Canvas accessed by registering and logging into an Account on the Canvas Websites.

2.5 “Canvas Services” means the Canvas Websites, Accounts, Platform, Software,
Data Search Code, and all related products and/or services of Canvas.

2.6 “Commercial Data” has the meaning set forth in Addendum 1 attached hereto and incorporated herein by reference.

2.7 “Cloud Services Provider” means a for-profit or a non-profit provider of any of the following and/or any related cloud-based products, services, and/or applications: Cloud storage, cloud computing, software as a service (SaaS), platform as a service (PaaS), and/or infrastructure as a service (IaaS).

2.8 “Content” means any and all information in any medium that is capable of being stored by computer, including without limitation any links, files, messages, texts, graphics, data, data models, databases, spreadsheets, code, script, software, sound, music, audio, photographs, graphics, video, maps, etc.

2.9 “Data Information Access” has the meaning set forth in Section 4 below.

2.10 “Data Search Code” has the meaning set forth in Section 4 below.

2.11 “Enterprise” means any corporation, limited liability company, partnership, sole proprietorship, and/or other business entity that may provide its acceptance of the terms and conditions of this Agreement and be bound by them.

2.12 “Intellectual Property Rights” means all intellectual property and proprietary rights anywhere in the world under the laws of any state, country, territory, and/or other jurisdiction, as may now exist or hereafter come into existence, whether statutory, common law, or otherwise, including without limitation any and all patent rights (including patent applications and disclosures), copyright rights, trade secret rights, moral rights, know-how, database rights, mask work rights, rights of publicity, Marks (whether registered or unregistered), and all goodwill relating to the foregoing and any and all applications therefore and registrations, renewals, and extensions thereof.

2.13 “Mark” means any trademark, trade name, trade dress, service mark, corporate name, design, logo, device, domain name, and/or other indicator of the source or origin of any product or service.

2.14 “Order Form” means the form of document attached as Schedule A, and incorporated herein by reference, and which document, when executed by both parties hereto, shall form a part of this Agreement and be subject to the terms hereof.

2.15 “Profile” has the meaning set forth in Section 3 of this Agreement.

2.16 “Software” means the browser application made available by Canvas from time to time to Enterprise and its authorized Users.

2.17 “Term” has the meaning set forth in Section 6.1 of this Agreement.

2.18 “User” means any user of the Canvas Websites and/or Canvas Services, including without limitation Enterprise, Authorized Enterprise Users, and/or other individuals or third parties that use the Canvas Websites and/or Canvas Services.

2.19 “Website” means the websites collectively of Canvas, including the homepage, which is typically found and such other websites maintained by Canvas and its affiliates from time to time.

3. Account Registration

3.1 Registration. To use login-accessed portions of the Canvas Website and to access and use the Canvas Platform (and Software), Enterprise must register and obtain an Account, request activation of the Canvas Platform, and be accepted and approved by Canvas.

3.2 Profile. At the time of Account creation, Enterprise and any Authorized Enterprise User must register a User profile (“Profile”), and Enterprise, Authorized Enterprise User, and/or Enterprise’s Users must always provide accurate, truthful, and complete information and maintain and update such profile to ensure ongoing accuracy, completeness, and truthfulness. User agrees not to provide any false or misleading information about its identity, business, employer, physical location, email address, contact information, and/or any other information, to correct any such information that is, or becomes, false or misleading, and to respond promptly to any requests for verification of such information.

3.3 Authorized Use. Enterprise agrees not to allow another User, person, entity, and/or organization to create or register an Account on its behalf or for its benefit, except that Enterprise may authorize a User to act on its behalf to create login credentials and establish an Account and Profile and to administer the activities of Enterprise on the Canvas Platform by means of such Account (“Authorized Enterprise User”). Enterprise shall ensure that such Authorized Enterprise User represents, warrants, and covenants as set forth in Section 3.4 below. Enterprise shall assume full responsibility for the use of such Account or Accounts and each such Authorized Enterprise User and User that accesses and/or uses such Account or Accounts or uses the Canvas Services. Enterprise acknowledges and agrees that all User and Account information, and any rights, privileges, and/or licenses Enterprise or any User claims, will be subject to verification at any time and from time to time, including without limitation against third-party databases or government and/or legal registrations or documents. Enterprise authorizes Canvas and its agents to make inquiries and to investigate as necessary to validate Enterprise’s and all Users’ Account information and Profiles. Enterprise also agrees to provide evidence to verify any or all of the foregoing when requested by Canvas, to the satisfaction of Canvas in its sole discretion. Until such time, Canvas may suspend any such User’s access to the Canvas Services.

3.4 Authorized Users. Enterprise, Authorized Enterprise Users, and all of Enterprise’s Users hereby represent, warrant, and covenant that: (i) User is an employee or agent of, or is authorized by, Enterprise; (ii) Such User will use the Canvas Services for business purposes only in accordance with all applicable laws, rules, and regulations; (iii) Such User will comply with any licensing, registration, regulatory, and/or other legal requirements with respect to its business, or the business for which it is acting, and with respect to the use of the Canvas Services; and (iv) Such User is an individual who is eighteen (18) years or older (or has otherwise reached the age of majority in the jurisdiction in which Authorized Enterprise User is located (but in no instance less than sixteen (16) years of age) in each case who can form legally binding contracts; and (v) Such User shall abide by and comply with this Agreement and all applicable user policies and guidelines; and (vi) Such User agrees not to share its username or password (or other login credentials) with any person, except such person or persons who are authorized hereby to use the Canvas Platform Account.

4. Canvas Platform Access; Software License

4.1 Platform Grant; License Grant. During the term of this Agreement, conditioned upon payment of the fees hereunder, conditioned upon compliance with this Section 4, conditioned upon the provision of Data Information Access, and subject to the terms hereof, Canvas grants to Enterprise a limited, non-exclusive, non-transferrable, non-sublicensable right to access and use the Canvas Platform by means of an Account established and registered by Enterprise and/or its Authorized Enterprise User in accordance with this Agreement.

To the extent that use of the Canvas Services requires the installation of Software, Canvas grants to Enterprise (and each User authorized by Enterprise) a limited, non-transferrable, non-sublicensable, non-exclusive right and license during the Term to use the object code of the Software internally in connection with Enterprise’s use of the Canvas Services, conditioned upon compliance with Section 4, Section 12, payment of the Canvas Fees, and subject to the terms hereof.

Use of the Canvas Services may also involve the receipt and use of software code provided by Canvas for purposes of conducting searches of Enterprise’s and/or its Cloud Service Providers’ data warehouses (“Data Search Code”). Canvas grants to Enterprise, and Users authorized by Enterprise, a limited, non-transferrable, non-sublicensable, non-exclusive right and license during the Term to use the Data Search Code internally in connection with Enterprise’s use of the Canvas Services, conditioned on compliance with the terms of confidentiality of Section 12, the terms of Section 4, payment of the fees hereunder, and subject to the terms of this Agreement. For the avoidance of doubt, Enterprise and all of its Users acknowledge and agree that the Data Search Code (including any and all variations thereof) are Confidentiality Information as set forth in Section 12 hereof and may not be disclosed to any third party, nor used for any purpose other than Enterprise’s internal purposes consistent with this Agreement.

4.2 Data Warehouse Access; Cloud Service Provider Access. Enterprise hereby grants Canvas during the term of this Agreement a limited right of access to certain specific, mutually agreed upon (i) online data warehouses of Enterprise, and (ii) Cloud Services Provider accounts, and to the information and data therein and/or derived therefrom, for the sole purpose of allowing Canvas to retrieve Commercial Data (as defined in Section 2 hereof) required by Canvas to provide the Canvas Services (“Data Information Access”). Except by prior written agreement and consent of Canvas, Enterprise shall only provide Commercial Data (as defined below) while providing Data Information Access.

Enterprise shall authorize, enable, and ensure the ongoing Data Information Access. If Enterprise shall limit or restrict such Data Information Access so that Canvas determines, in its sole discretion, that it cannot provide the Canvas Services, then Canvas shall be relieved of its obligations to provide access or use of the Canvas Services, and Canvas may immediately suspend the provision of the Canvas Services or terminate this Agreement.

4.3 Representations, Warranties, and Covenants. Enterprise and its authorized Users understand, acknowledge, and agree that Data Information Access is a precondition to providing access and use of the Canvas Services, that, subject to the terms of this Agreement, only Enterprise and its authorized Users can reasonably control the type of Data Information Access provided to Canvas so that it does not violate any third party agreement and/or rights and/or violate any laws, rules, and regulations, and that, therefore, it is the sole and exclusive responsibility of Enterprise to both provide sufficient and adequate Data Information Access, yet at the level, scope, and type that is appropriate to the circumstances and that will not violate any third party agreements and/or rights and/or applicable laws, rules, and regulations.

Enterprise and each User represents, warrants, and covenants that it (i) shall only provide Data Information Access that meets such requirements, (ii) shall only provide such Data Information Access as is necessary to meet the requirements of Canvas (iii) has and shall maintain all rights, privileges, and/or authorizations necessary and helpful to enable the provision of such level and type of Data Information Access provided on an ongoing basis (iv) shall secure and maintain all necessary and helpful authorizations and/or approvals of such in writing to enable such, and shall provide these to Canvas upon request; (v) shall not provide the Data Information Access, nor use and/or employ the Canvas Platform and/or Canvas Services, for any purpose, if it does not have the appropriate rights and licenses and authorizations to do so; and (vi) the Data Information Access shall only be comprised of Commercial Data and that nothing but Commercial Data shall be provided.

5. Canvas Fees

5.1 Enterprise Fees. Enterprise shall pay an annual or monthly fee as set forth in the Oder Form, otherwise as set forth in Canvas’s standard pricing guide, and additional fees may apply based upon the number of Users, establishment of the Canvas Service for Enterprise, and other fees and costs specified by Canvas (“Canvas Fees”).

5.2 Payment Terms. Such Canvas Fees shall be paid in full in accordance with the Order Form, otherwise within thirty (30) days of the end of the month or the date of the applicable invoice, whichever is earlier. Except as expressly set forth in this Agreement, the Canvas Fees are non-refundable and non-cancelable, and Canvas reserves the right to charge interest on such fees and other amounts due or payable hereunder that are not paid within fifteen (15) days of the earlier of when they were due or payable or when they were invoiced, at a rate of one and one-half percent (1.5%) per month, or the highest rate permitted by applicable law, whichever is less, plus all expenses of collection.

5.3 Taxes. The Canvas Fees, and any and all other fees and costs due and owing Canvas, do not include any sales, use, excise, transaction and/or other similar taxes levied against or upon the rights of use or license or the furnishing or delivery or receipt of products and/or services pursuant to this Agreement, nor do they include any charges or fees imposed by a government, bank, or other. Enterprise shall be responsible for all such fees and charges and all such taxes associated with the payment for the Canvas Fees, other than United States taxes based on Canvas’s net income.

6. Term and Termination

6.1 Term. The term of this Agreement shall begin upon the Effective Date and continue for the period of time specified in such Order Form, unless earlier terminated in accordance with the terms of this Agreement (the “Term”). Unless expressly stated otherwise in a mutually executed Order Form, Canvas may terminate this Agreement at any time for any reason, including for its convenience, by written notice to Enterprise and/or User.

6.2 Termination for Inactivity. Subject to the terms hereof and applicable law, if a User Account remains inactive for six (6) months, then Canvas may suspend or terminate access to the Canvas Services, deactivate or delete the Account, and delete all its Content and/or data, and/or may terminate this Agreement.

6.3 For Cause Termination or Response. Without limiting Canvas’s other rights or remedies, Canvas may, but is not obligated to, temporarily or indefinitely revoke or limit access to the Canvas Services, deny any User registration, and/or permanently revoke any User access to the Canvas Services, or use of the Software or Data Search Code if: (i) User breaches the letter or spirit of any terms and conditions of this Agreement; (ii) Canvas suspects or becomes aware that User has provided false or misleading data or information to Canvas in an Account or Profile; (iii) Canvas believes, in its sole discretion, that User actions may cause legal liability for any other User and/or Canvas and/or its affiliates; or may involve illicit or illegal activity; (iv) any User is acting without appropriate and/or necessary authorizations; and/or (v) Canvas is required by law, legal process, or law enforcement. If any User’s Account is temporarily or permanently closed, User may not use the Canvas Website, Canvas Account, and/or Canvas Services under the same Account or a different Account or re-register under a new Account without Canvas’s prior written consent.

Except as otherwise required by law, if a User’s Account is closed for any reason, such User will no longer have access to Content, information, data, messages, files, and/or other material it keeps in the Canvas Services. Within a maximum of thirty (30) days following closure of any such User’s Account and/or termination of this Agreement for any reason, Canvas will, upon Enterprises’ written request, return such Account Content to Enterprise in a mutually agreed upon format. Absent such a request, any closure of a User’s Account and/or any Account associated with Enterprise may involve deletion of any and all Content stored in the Account for which Canvas will have no liability whatsoever. Canvas, in its sole discretion and as permitted or required by law, may retain some or all of the Account information.

6.4 Survival. After this Agreement terminates, the terms of this Agreement that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. The termination of this Agreement for any reason will not release Enterprise or Canvas from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.

7. Intellectual Property Rights

7.1 Retained Rights. Excluding data, information, or Content provided exclusively by Enterprise or its authorized Users, Enterprise agrees that Canvas and its licensors and suppliers retain and own all rights, title and interests in and to the following, and in and to all Intellectual Property Rights therein: (i) the Canvas Website, Canvas Accounts, Canvas Platform, Canvas Software, Data Search Code, Canvas Services, and/or any and all related products and services; (ii) the components and/or any and all other materials, data and/or information provided and/or made available by Canvas in connection with any of the foregoing; and (iii) any and all configurations, derivative works, developments, modifications, adaptations, changes, alterations, edits, conversions, improvements and/or the like made to, arising out of, and/or resulting from any of the foregoing. All rights not expressly granted under this Agreement, are reserved to Canvas and its licensors and suppliers, and there are no implied rights. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel, or otherwise, a right or license to any party’s data, information, intellectual property or proprietary technology other than in strict accordance with the terms of this Agreement. Enterprise, its authorized Users, and/or all other Users acknowledge and agree that Canvas and its licensors, suppliers, vendors and/or its third party vendors shall own all right, title and interest in, and all Intellectual Property Rights therein, any suggestions, enhancement, requests, feedback, and/or recommendations provided by Enterprise, Authorized Enterprises Users, any other Users authorized by Enterprise relating to the Canvas Services without any limitation and restrictions thereon nor requirement of compensation related thereto, including without limitation all unpatented inventions, patent applications, patents, design rights, copyrights, Marks, know-how and other trade secret rights, and all other Intellectual Property Rights, derivatives or improvements thereof.

7.2 Misuse of Canvas Services Prohibited. Enterprise and its authorized Users may not and shall not, nor allow any User and/or third party to: (i) modify, disassemble, decompile or reverse engineer the Canvas Services, nor any services and/or products related to the foregoing or to this Agreement; (ii) copy the Canvas Services and/or make any derivative works thereof; (iii) use information from any of the Canvas Services to build a database for resale or for access by a third party in direct or indirect competition with the Canvas Services; (iv) delete or in any manner alter the copyright, Mark, and other proprietary rights notices, if any, of Canvas and its licensors and/or suppliers appearing on any Canvas Services. Enterprise and Authorized Enterprise Users shall not (a) license, sublicense, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Canvas Services, or any element thereof, available to any third party; (b) attempt to disable or circumvent any security mechanisms used by the Canvas Services or any applications running on the Canvas Services; (c) engage in any activity that interferes with or disrupts the Canvas Services (or the servers and networks which are connected to the Services); (d) access the Canvas Services in a manner intended to avoid incurring fees or exceeding usage limits or quotas; (e) access the Canvas Services for the purpose of bringing an intellectual property infringement claim against Canvas or for the purpose of creating a product or service competitive with the Canvas Services; or (f) use any robot, bot, spider, site search/retrieval application or other manual or automatic program or device to retrieve, index, “scrape,” “data mine” or in any way gather Content from the Canvas Services. Furthermore, Enterprise and/or it authorized Users may not and shall not, nor allow any User and/or third party to upload, record, publish, post, link to, transmit or distribute Content, or otherwise utilize the Canvas Services in a manner that: (i) advocates, promotes, incites, instructs, informs, assists or otherwise encourages violence, inappropriate behavior, and/or any illegal activities; (ii) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or Canvas, or any rights of publicity or privacy of any party; (iii) attempts to mislead others about Enterprise or any User’s identity or the origin of a message or other communication, or impersonates or otherwise misrepresents its affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iv) promotes, solicits or comprises inappropriate, harassing, insensitive, abusive, profane, hateful, defamatory, libelous, threatening, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (v) is harmful to minors; (vi) utilizes or contains any viruses, Trojan horses, worms, malware, spyware, time bombs, and/or any other similar software, data, code, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (vii) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising). Canvas reserves the right (but shall have no obligation) to monitor and remove Content from the Canvas Services, in its sole discretion. Enterprise and its authorized Users agree to immediately take down any Content they have supplied that violates the above terms, including pursuant to a takedown request from Canvas. Canvas also reserves the right to directly take down such Content. Enterprise and its authorized Users shall not create Internet "links" to the Canvas Services or "frame" or "mirror" any part of the Canvas Service, including any content or Content contained in the Canvas Services, on any other server or device. Except as expressly stated herein, no part of the Canvas Services 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.

7.3 Export Compliance. The Canvas Services are subject to all applicable export control laws and regulations, including without limitation those of the United States government. Enterprise and Authorized Enterprise Users agree not to directly or indirectly export, re-export, divert, release, provide access to, transfer or disclose the Canvas Services, or any derivative thereof, to any prohibited or restricted destination, end-use or end-users or to anyone who requires a United States export license or other license, except in accordance with all relevant export control laws and regulations which may require it to obtain necessary licenses, approvals or permissions from the appropriate US governmental authority and all required foreign authorities prior to undertaking such activities.

7.4 Consumer Notices and Laws. Enterprise will, on behalf of itself and Canvas as its service provider, provide all required consumer notices and disclosures and, where required, secure consents in compliance with all applicable laws, rules, and regulations with respect to any Content and usage of the Canvas Services and with respect to any applicable consumer privacy regulations and with respect to any national security data rules. Except as expressly provided otherwise in this Agreement, Enterprise will be solely responsible for, and agrees to comply with, all applicable laws, rules, and regulations.

8. Warranty Disclaimer

EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CANVAS SERVICES, CANVAS WEBSITES, ACCOUNTS, PLATFORM, SOFTWARE, DATA WEARCH CODE, AND/OR ANY AND ALL OTHER SERVICES AND/OR PRODUCTS RELATED HERETO AND/OR MADE AVAILABLE TO ENTERPRISE AND/OR AUTHORIZED USERS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND CANVAS AND ITS LICENSORS, VENDORS, AND/OR SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, GUARANTEES, PROMISES, REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE, TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, AND/OR CONTENT AND/OR DATA ACCURACY. CANVAS, ON BEHALF OF ITSELF AND ITS LICENSORS, VENDORS, AND/OR SUPPLIERS, DOES NOT WARRANT THAT THE CANVAS SERVICES AND/OR ANY OR ALL OTHER SERVICES AND/OR PRODUCTS MADE AVAILABLE TO ENTERPRISE AND/OR AUTHORIZED USERS WILL MEET THEIR REQUIREMENTS OR EXPECTATIONS, THAT THE OPERATION AND/OR USE OF THE FOREGOING WILL BE UNINTERRUPTED AND/OR ERROR-FREE, IMPERVIOUS TO HACKING OR UNAUTHORIZED INTRUSTION, OR THAT ANY ERRORS WILL BE CORRECTED. ENTERPRISE (AND ALL AUTHORIZED USERS) ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT, ABSENT SUCH DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS, THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT.

9. Limitation of Liability

Enterprise and all its authorized Users agree that Canvas shall not be liable for any damages or losses arising out of or in connection with the Canvas Services, including, but not limited to: (i) inability to use them; (ii) delays or disruptions relating thereto; (iii) viruses or other malicious software obtained by accessing, or linking thereto; (iv) glitches, bugs, errors, or inaccuracies of any kind in them; (v) damage to Enterprise’s and/or it authorized User’s hardware devices arising from the use thereof; (vi) the content, actions, or inactions of third parties’ use of them, or unauthorized access thereto; (vi) a suspension or other action taken with respect to the Accounts of Enterprise or its authorized Users; (vii) Enterprise’s and/or its authorized Users reliance on the quality, accuracy, or reliability of data, postings, profiles, ratings, recommendations, and feedback used on, or made available through the Canvas Services; and (viii) Enterprise or its authorized Users need to modify practices, content, or behavior or its loss of or inability to do business, as a result of changes to the terms of service.

ADDITIONALLY, IN NO EVENT WILL CANVAS, ITS AFFILIATES, ITS LICENSORS, NOR ITS THIRD-PARTY PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, LOSS OF DATA, UNAUTHORIZED ACCESS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF CANVAS, ITS AFFILIATES, ITS LICENSORS, AND ITS THIRD-PARTY PROVIDERS TO ENTERPRISE AND/OR ANY AUTHORIZED ENTERPRISE USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE TOTAL AMOUNT OF ANNUAL FEES PAID BY ENTERPRISE TO CANVAS. THESE LIMITATIONS WILL APPLY TO ANY AND ALL LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER AGREEMENT OR RELATIONSHIP BETWEEN THE PARTIES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.

10. Indemnifications

Enterprise and User will indemnify, defend, and hold harmless Canvas, its affiliates, and their respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims and Liabilities (defined below) relating to or arising out of (i) the representations, warranties, and covenants contained in this Agreement, including without limitation in Section 4 (ii) the use of the Canvas Services by Enterprise and/or its authorized Users and/or agents; (iii) any Enterprise and/or authorized User-supplied Content developed, provided, posted, published, and/or otherwise related to use of the Canvas Services; (iv) failure to comply with this Agreement and/or any related agreements, terms of service, guidelines, and/or usage policies by Enterprise, Authorized Enterprise User and/or its agents; (v) failure to comply with applicable law by Enterprise, its authorized User and/or agents; (vi) negligence, willful misconduct, or fraud by Enterprise, its authorized Users and/or agents; and (vii) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by Enterprise, its authorized User and/or agents. An agent includes any person who has apparent authority to access or use User’s account as demonstrated by using its username and password.

“Indemnified Claims and Liabilities” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses, and including costs related to securing insurance coverage) arising from and/or relating to any claim, suit, proceeding, demand, investigation, and/or action brought by Enterprise, its authorized User, or a third party or other User against an Indemnified Party.

11. Choice of Law

This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Except for small claims disputes in which Enterprise and/or User or Canvas seeks to bring an individual action in small claims court located in the county of User’s and/or Enterprise’s billing address or claims for injunctive relief by either party, any dispute or controversy arising out of, in relation to, or in connection with this Agreement or User’s or Enterprise’s use of the Canvas Services shall be finally settled by binding arbitration in Santa Clara County, California under the Federal Arbitration Act (9 U.S.C. §§ 1-307) and the then-current rules of JAMS (formerly known as Judicial Arbitration & Mediation Services) by one (1) arbitrator appointed in accordance with such rules. Where arbitration is not required by these terms, the exclusive jurisdiction and venue of any action with respect to the subject matter of these terms will be the state and federal courts located in Santa Clara County, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, AND USER AND/OR ENTERPRISE EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THIS AGREEMENT.

Except as required by the mandatory arbitration provisions hereof, Enterprise agrees that the California state courts of Santa Clara County (or, if there is federal jurisdiction, the United States District Court for the Northern District of California) will have jurisdiction and venue with respect to any claim arising out of or relating to this Agreement and consents to the personal jurisdiction and venue of those courts.

12. Confidential Information

12.1 Definition. “Confidential Information” means any information in any form related to this Agreement and its purposes disclosed by a party (the “Discloser”), or disclosed on behalf of such party by its affiliates or representatives, to the other party (the “Recipient”), including without limitation any trade secrets, technology, technical data, source code, object code, software, inventions, know-how, information that Discloser considers and treats as confidential, or that a reasonable person would believe is confidential based on the nature of the information. Confidential Information does not include information that (i) at the time of disclosure, is available to the general public, (ii) becomes available to the general public through no fault of Recipient, (iii) is received by Recipient at any time from a third party without breach of a non-disclosure or confidentiality obligation to Discloser, (iv) is known to Recipient at the time of disclosure, as demonstrated by documentary evidence, (v) is developed independently by Recipient without access to any of Discloser’s Confidential Information, or (vi) is approved for disclosure by prior written permission of Disclosure or a corporate officer of Discloser, including without limitation pursuant to the terms of this Agreement.

12.2 Restrictions. Recipient shall use Discloser’s Confidential Information only for the purposes of this Agreement (the “Purpose”). Except as permitted in this Agreement, Recipient shall not disclose to any third party any of Discloser’s Confidential Information that is obtained directly or indirectly from Discloser or its affiliates or representatives. Recipient may only disclose the Confidential Information of Discloser to its representatives who are required to have it to further the Purpose.Recipient must inform any such representative of the confidential nature of the information and cause the representative to comply with the terms of this Agreement as if it were the Recipient, and Recipient will be liable for any breach of this Agreement by any such representative. Recipient will exercise the same degree of care toward the Confidential Information as Recipient exercises toward its own confidential information, but not less than reasonable care. Recipient agrees to take all reasonable steps to protect the secrecy of, and avoid disclosure or use of, the Discloser’s Confidential Information in order to prevent it from falling into the public domain or possession of unauthorized persons. Recipient agrees to immediately notify Discloser in writing of any use and/or disclosure in violation of this Agreement. Each party, however, may disclose Confidential Information of the other pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement. Recipient agrees and acknowledges that any such breach or threatened breach of these terms of confidentiality may cause irreparable injury to Discloser so that, in addition to any other remedies available, Discloser may seek injunctive relief against the threatened or actual breach.

13. Service Commitment

Canvas will use commercially reasonable efforts to ensure the accessibility of the Canvas Website, Accounts, and Platform and to ensure that updates to the foregoing shall not degrade their functionality, capabilities, or features and that any such updates shall be backward compatible with the data structures, databases, and system architecture employed with previous versions. Canvas will, to the extent practicable, give Enterprise and it authorized Users advance notice prior to initiating an unplanned maintenance operation, and such notice shall indicate the estimated timing of such unplanned maintenance operation.

14. General Provisions

14.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between Enterprise and Canvas relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between Enterprise and Canvas, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings are included for ease of reference only and have no binding effect.

14.2 Modifications, Waiver. No modification or amendment to this Agreement will be binding upon Canvas unless they are agreed in a written instrument signed by a duly authorized representative of Canvas or posted on the Canvas Website. Canvas’s failure to act with respect to a breach by Enterprise, Authorized Enterprise User or others does not waive Canvas’s right to act with respect to subsequent or similar breaches. Canvas does not guarantee it will take action against all breaches of this Agreement.

14.3 Assignability. Enterprise may not assign this Agreements, or any of its rights or obligations hereunder, without Canvas’s prior written consent in the form of a written instrument signed by a duly authorized representative of Canvas. Canvas may freely assign this Agreement without Enterprise’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the terms and conditions of this Agreement are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.

14.4 Severability; Interpretation. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.

14.5 Force Majeure. The parties to this Agreement will not be responsible for the failure to perform, or any delay in performance of, any obligation hereunder for a reasonable period due to pandemics, disease, labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other conditions beyond the reasonable control of such party.

14.6 Language. The English language version of this Agreement will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Canvas Services are controlled and operated from Canvas’s facilities in the United States.

14.7 Non-US Website Access. Canvas makes no representations that the Canvas Services are appropriate or available for use outside of the United States. Those who access or use the Canvas Services from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. User must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. User also warrants that it is not prohibited from receiving US origin products, including services or software. In order to access or use the Canvas Services, User must and hereby represents that it is not: (i) a citizen or resident of a geographic area in which access to or use of the Canvas Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (ii) a citizen or resident of, or located in, a geographic area that is subject to US or other sovereign country sanctions or embargoes; or (iii) an individual, or an individual employed by or associated with an entity, identified on the US Department of Commerce Denied Persons or Entity List, the US Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the US Department of State Debarred Parties List or otherwise ineligible to receive items subject to US export control laws and regulations or other economic sanction rules of any sovereign nation. User agrees that if its country of residence or other circumstances change such that the above representations are no longer accurate, that User will immediately cease using the Canvas Services and its license to use the Canvas Services will be immediately revoked.

14.8 Electronic Records. In connection with this Agreement, User may be entitled to receive, or Canvas may otherwise provide, certain records from Canvas or its Affiliates, such as contracts, notices, and communications, in writing. To facilitate User’s use of the Canvas Services, User gives permission to provide these records to User electronically instead of in paper form.

14.9 Audit. User agrees that, on Canvas’s request, it will certify in writing its compliance with the terms of this Agreement.

15. Claims of Copyright Infringement / DMCA Notices

Canvas respects other’s intellectual property rights and will comply with U.S. Copyright laws, including the Digital Millennium Copyright Act of 1998 ("DMCA"). The DMCA allows owners of copyrighted material who believe their rights have been infringed on the Internet to seek rectification. If Enterprise or User believes material available on Canvass Websites infringe Enterprise’s or another’s copyright, notify Canvas as described below. After receiving notice, Canvas may remove or disable access to any infringing material, as provided in the DMCA. Contact Canvas at the following: [Copyright Representative, 527 Howard St, Floor 2 San Francisco, CA 94105 United States, hello@canvasapp.com]

The notification must include the following information, as required by the DMCA:

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Canvas to locate the material;
Information reasonably sufficient to permit Canvas to contact the complaining party, such as address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
A statement that the information in the notification is accurate and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If User believes material stored on Canvas’s websites has been removed by mistake or as the result of an improper takedown notice, send Copyright Representative, identified above, a "counter notification" containing the following information as required by the DMCA:

User’s physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that User has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
User’s name, address, and telephone number, and a statement that User consents to the jurisdiction of Federal District Court for the judicial district in which User’s address is located, or if User’s address is outside of the United States, for any judicial district in which Canvas may be found, and User will accept service of process from the person who provided notification that led to the mistaken removal of User’s material or an agent of such person.

There are substantial penalties for sending false notices. In appropriate circumstances and in Canvas’s sole judgment, it may suspend or terminate the service and/or account of any User, who is deemed to be a repeat or blatant infringer of copyrights.

ADDENDUM 1

DEFINITION OF COMMERCIAL DATA

“Commercial Data” means business, economic, and/or labor industry data in the public domain that (i) does not include and/or contain any Excluded Data (as defined below); (ii) has been lawfully obtained and is lawfully possessed free of any and all restrictions or limitations on its use, sale, publication, and/or distribution, and (iii) that is free of any liens or encumbrances or similar claims.

“Excluded Data” means information and/or data that is subject to any federal, state, and/or foreign laws and regulations relating to (i) Privacy Laws (as defined below), (ii) national security laws and/or import or export laws, rules, and/or regulations, including without limitation those of the United States or People’s Republic of China; (iii) consumer laws, rules, or regulations; (iv) any other laws, rules, or regulations that restrict, limit, and/or prohibit the Commercial Data Transfer; and/ (iv) any third party legal agreements, contracts, and/or arrangements that restrict, limit, or prohibit the Commercial Data Transfers.

"Privacy Laws" shall mean each law, regulation, rule, directive or any similar rule of any country, state, or political subdivision that concerns the Processing (as defined below) of Personal Data (as defined below); security incident notifying requirements regarding personal data; privacy and security requirements for websites and mobile applications, online behavioral advertising, tracking technologies, or call or electronic monitoring or recording, including outbound calling and text messaging, telemarketing and email marketing, direct marketing and any other initiation, transmission, monitoring, recording, or receipt of communications (in any format, including voice, video, email, phone, text messaging, or otherwise), including, without limitation, the California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act of 2020) and all regulations adopted by the California Attorney General or the California Privacy Protection Agency pursuant thereto, the Payment Card Industry Data Security Standard, the Federal Trade Commission Act, the Gramm Leach Bliley Act, the Fair Credit Reporting Act, the Fair and Accurate Credit Transactions Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act, the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, the Video Privacy Protection Act, other state privacy and data security laws, state social security number protection laws, state laws relating to the privacy of biometric information, the European General Data Protection Regulation, the Brazilian Geral de Proteção de Dados, the Canadian Personal Information Protection and Electronic Documents Act, the Chinese Personal Information Protection Law and all similar laws, regulations, rules or directives

"Processing" shall mean any operation or set of operations that is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as the collection, recording, organization, structuring, storage, adaption, alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

"Personal Data" shall mean (a) any information that relates to an identified or identifiable natural person, device, or household, including name, street address, telephone number, e-mail address, photograph, social security number, social insurance number, driver’s license number, passport number, government issued identification number, customer or account number, health information, financial information, consumer report information, device identifier, transaction identifier, IP address, physiological and behavioral biometric identifier, or any other piece of information that alone or in combination with other information allows the identification a natural person, device or household; and (b) any other information that is otherwise considered “personal information,” “personally identifiable financial information”, “personally identifiable information”, or “personal data” under applicable Privacy Laws.

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