GameStrat Inc. Terms & Conditions

These Terms and Conditions (“Terms”) are between Customer and GameStrat Inc., an Ontario corporation with offices at 7 Bayview Station Rd, Ottawa, Ontario, Canada, K1Y 2C5 (“GameStrat”) and govern Customer’s receipt of software and supporting hardware solutions made available by GameStrat. Capitalized terms have the definitions set forth herein. By accepting these Terms, either by clicking a box indicating acceptance, executing or otherwise accepting an Order that references these Terms, or using a Trial Service or Free Service, Customer agrees to and accepts the terms of these Terms. For clarity, paying an Order referencing these Terms or receiving and/or using a Service referenced under an Order constitutes acceptance of these Terms.

These Terms were last updated on November 22, 2024. They are effective between GameStrat and Customer as of the date of Customer’s acceptance of these Terms (“Effective Date”). GameStrat will notify you of any material changes to these Terms. Any such revisions to these Terms shall become effective thirty (30) days following the date of the notice and Customer’s acceptance of the revised Terms or decision to continue using the Service thereafter (as applicable) shall constitute acceptance of the revised Terms.

1. Definitions.

For the purposes of these Terms, in addition to the capitalized terms defined elsewhere in these Terms, the following terms shall have the meanings ascribed to them as follows:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of these Terms, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.

“Background Technology” means the Service, User Guides, and all Intellectual Property owned, used, developed, acquired, or otherwise obtained by GameStrat, either prior, during or after the Term.

“Customer” means in case of a company or other legal entity, such company or legal entity, or in the case of an individual accepting these Terms on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting these Terms, and Affiliates of that company or entity (for so long as they remain Affiliates).

“Customer Data” means all electronic data or information imported by a Customer and/or Users into the Service, including any Personal Information and information passed through the Service via a Third-Party Service.

“Equipment” means the hardware and/or equipment specified in the applicable Order which enables access to the Service.

“Equipment Fees” means the fees for the purchase, installation, or lease (as the case may be) of the Equipment, as specified in the applicable Order.

“Fee” means the fees for the Service, including any applicable Equipment Fees, as specified in the applicable Order.

“Intellectual Property” means all algorithms, application programming interfaces (APIs), concepts, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, works of authorship, and other forms of technology.

“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patent and industrial property rights; (v) other proprietary rights in Intellectual Property of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (i) through (v) of this sentence.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.

“Order” means the document setting out Services ordered by the Customer, including but not limited to an invoice or order form, which incorporates these Terms by reference.

“Personal Information” means information about an identifiable individual.

“Privacy Laws” means the Personal Information Protection and Electronic Documents Act (Canada) and applicable Canadian provincial privacy legislation.

“Refund and Warranty Policy” means GameStrat’s refund and warranty process for the Service, as amended, the latest version of which is available at https://www.gamestrat.com/return-policy.

“Representatives” means a party’s agents, employees, Affiliates, and Subcontractors.

“Service” means the Software and Equipment (as applicable).

“Software” means GameStrat’s instant replay software solution, as further described in a User Guide, and all inclusions and modifications to the Software made by GameStrat from time to time.

“Term” has the meaning ascribed to that term in Section 11.1.

“Third-Party Service” means a third-party platform or service which is not owned or controlled by GameStrat.

“User” means an individual or entity who is authorized by Customer to use the Service.

“User Guide” means the technical user guide for the Service and/or Equipment that may be provided to Users, as updated by GameStrat from time to time.

GameStrat and Customer are referred to individually as a “party” and collectively as the “parties”.

2. Access to the Service.

2.1 Grant of Software License. Subject to compliance with these Terms, including payment of the applicable Fees, GameStrat hereby grants to Customer a limited, non-exclusive, non-transferrable, revokable license to use the Software solely for Customer’s internal business use during the Term. Customer’s license includes the right to use and provide the Software to Users in accordance with any User Guide (as applicable). Customer’s right to use the Software during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the applicable Order.

2.2 Incremental Services. From time to time, certain additional Service functionality may be made available by GameStrat to Customer and which additional functionality may be enabled and/or purchased by Customer for additional Fees in accordance with such terms and conditions as may be applicable to such additional functionality (such terms and conditions prevailing in the event of any inconsistency with the terms and conditions of these Terms).

2.3 Provision of Equipment. Subject to compliance with these Terms, including payment of the applicable Equipment Fees, GameStrat shall provide Customer with the Equipment. Customer acknowledges and agrees that the Equipment must be operated and maintained in accordance with the User Guide (as applicable) and other specifications that may be communicated by GameStrat from time to time. Customer acknowledges that Equipment remains the property of and proprietary to GameStrat and its licensors unless otherwise set out herein to the contrary.

2.4 Users. Users may use the Service subject to the terms of these Terms. Customer may be required to register an account with GameStrat to use the Service or GameStrat may provide accounts to Customer to be used by Users (as applicable). Customer shall be solely responsible for safeguarding the account credentials used to access the Service and for any activities or actions under GameStrat accounts. Customer shall ensure that no User commences or maintains any claim against GameStrat for any matter arising in connection with these Terms (whether founded on breach of contract or tort or any other legal theory).

2.5 Third-Party Services. The Service may integrate with or rely on Third-Party Services and the Customer acknowledges and agrees that the use and enabling of any such Third-Party Services will be subject to any terms which may govern and/or apply to such Third-Party Service.

3. Use of the Service.

3.1 GameStrat Responsibilities. GameStrat shall: (i) in addition to its confidentiality obligations hereunder, not use, modify, or disclose the Customer Data (except for the purposes of performing its obligations or exercising its rights under these Terms; (ii) maintain the security and integrity of the Service and the Customer Data and notify Customer of any breach thereof in accordance with Privacy Laws; (iii) provide basic support for the Service at no additional charge; and (iv) use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which GameStrat shall make commercially reasonable efforts to give prior notice and which GameStrat shall schedule to the extent reasonably practicable outside the hours of 5:00 p.m. Eastern Time Friday to 12:00 a.m. Eastern Time Sunday); or (b) any unavailability caused by circumstances beyond GameStrat's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving GameStrat employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving Equipment, Software or power systems not within GameStrat’s possession or reasonable control, and denial of service attacks.

3.2 Customer Responsibilities. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify GameStrat promptly of any such unauthorized access or use; (ii) comply with all applicable laws in using the Service, including without limitation, Privacy Laws; (iii) have sole responsibility for obtaining all consents and third-party licenses, and providing all necessary notices in accordance with Privacy Laws to ensure Customer Data can be shared with and used by GameStrat as contemplated herein; (iv) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; and (v) provide GameStrat with the capability to remotely communicate with Customer’s system via Internet access to provide diagnostic capabilities. Customer shall be solely responsible for ensuring that all Equipment: (I) is connected to an appropriate power source and the internet; and (II) is properly secured to prevent all losses due to theft, vandalism, fire, flood, or mysterious disappearance. GameStrat shall have the right to use the capabilities of the Service to confirm Customer’s compliance with these Terms.

3.3 Use Guidelines. Customer shall not (and shall not allow any of its Affiliates, Representatives, Users or a third party to): (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the Service, or make the Service available to any third party; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; (iv) attempt to copy, modify, create derivative works from, or distribute any part of the Service, except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (v) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reproduce any part of the Service; (vi) access any part of the Service in order to build a competing product or service; (vii) frame or mirror any content forming part of the Service; (viii) remove any proprietary notices, labels, or marks from the Service; or (ix) permit a User who has not received proper Service training to operate the Service. If a User Guide is provided to Customer, Customer shall not use or permit Users to use the Service other than in accordance with the User Guide.

3.4 Publicity. Neither party may issue press releases or make public statements relating to these Terms without the other party's prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's standard guidelines.

3.5. Trial and Free Services. In the event of a conflict between this Section 3.5 and any other portion of these Terms, this Section 3.5 shall control.

3.5.1 Trial Services. At GameStrat’s discretion, GameStrat may make some or all of the Service available to Customer on a trial basis (“Trial”). If Customer registers for a Trial, GameStrat will make the applicable part of the Service (“Trial Service”) available to Customer on a trial basis until the earlier of: (a) the end of the Trial period for the applicable Trial Service; (b) Customer purchasing the applicable Trial Service; or (c) termination by GameStrat in its sole discretion. Additional Trial terms and conditions may be applicable to the Trial Service and any such additional terms and conditions will be made available to Customer at the time of registration and will be incorporated into these Terms by reference.

3.5.2 Free Services. GameStrat may make some of the Service available to Customer free of charge (“Free Services”). Free Services shall exclude any Trial Service. Use of Free Services is subject to the terms and conditions of these Terms and may be provided to Customer up to certain limits, with usage over the limits requiring purchase or subscription for continued use. GameStrat, at its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Any termination of Customer’s access to the Free Services may be without prior notice, and GameStrat shall not be liable to Customer or any third party for such termination.

3.5.3 Customer Data. Any Customer Data and customizations made by Customer or User while using Trial Services or Free Services may be permanently lost unless Customer purchases a subscription to the same services as the Trial Service or Free Services or exports such data before the end of the Trial Period or termination of access to Free Services. As between GameStrat and Customer, Customer exclusively owns all rights, title, and interest in and to all Customer Data.

3.5.4 Representations and Warranties; No Indemnification. Notwithstanding anything in these Terms to the contrary, the Trial Services and Free Services are provided “as-is” without any warranty and GameStrat shall have no indemnification obligations nor liability of any type to Customer or User with respect to any damages arising out of Customer’s use of the Trial Services or Free Services. Without limiting the foregoing, GameStrat and its Affiliates and licensors do not represent or warrant to that: (a) use of the Trial Services or Free Services will meet Customer’s or User’s requirements; or (b) use of the Trial Services or Free Services will be uninterrupted, timely, secure or free from error.

3.5.5 Limitation of Liability. Notwithstanding anything in these Terms to the contrary, Customer shall be fully liable to GameStrat for any damages to GameStrat arising out of Customer’s or User’s use of the Trial Service during the Trial period or use of the Free Services, including without limitation, any breach by Customer or User of these Terms during the Trial or the Free Services period.

4. Use and Installation of Equipment.

4.1 Packing and Delivery. Equipment shall be delivered directly to Customer. Shipments of any Equipment ordered under an Order are subject to GameStrat's availability schedule. GameStrat shall make every reasonable effort to meet any delivery date(s) quoted or acknowledged in an Order. However, GameStrat will not be liable for its failure to meet such date(s) or for any shipping delays. All Equipment shall be packed, if appropriate, for shipment and storage in accordance with standard commercial practices. All packing will conform to requirements of carrier's tariffs. Title to purchased Equipment (other than any software and/or firmware embodied therein) passes to Customer upon full payment of the Equipment Fees. Equipment shall be delivered according to Incoterms 2020, Ex Works.

4.2 Installation. Customer shall be responsible for (i) Equipment configuration and installation, and (ii) configuring Customer’s or a User’s equipment and software as reasonably required for installation of the Equipment and for any damages (including, without limitation, damage to Customer or User equipment and software or to the Equipment) arising out of the Equipment configuration and installation process. GameStrat shall provide remote installation support at no extra cost.

4.3 Damage to Equipment. If Customer is leasing Equipment: (i) Customer agrees to reimburse GameStrat in full for all damage (other than normal wear and tear in the ordinary course of business, which shall be determined by GameStrat at its sole discretion upon return of the Equipment) to all leased Equipment during the Term; (ii) upon expiration or termination of the Term, Customer shall be solely responsible, at its sole expense, for return of the leased Equipment, in an unencumbered state, back to GameStrat; and (iii) if Customer fails to return the leased Equipment, or if, in GameStrat’s opinion, leased Equipment is returned in inoperable condition, or is altered, manipulated, or changed in any way, or which exhibits more than ordinary wear and tear than expected in the ordinary course of operation of the Equipment, Customer shall pay GameStrat, as the reasonable measure of GameStrat’s damages and not as a penalty, the then current list price for functionally equivalent Equipment. If the Customer is purchasing Equipment, Customer shall be solely responsible for covering any damage to purchased Equipment during the Term, subject to the Refund and Warranty Policy.

4.4 Upgrades; Inspection. GameStrat shall give at least sixty (60) days’ prior notice to Customer for any necessary Equipment changes or upgrades which will be required for Customer to access the Software. Customer acknowledges that such changes or upgrades may lead to increased Fees and agrees to pay all such Fees as communicated to Customer at the time of notice. Customer will allow GameStrat or its Representatives to inspect all Equipment at any point during the Term.

4.5 Use, Maintenance and Care. Customer shall be entitled to the use, operation, possession, and control of all Equipment as set out herein, provided Customer is not in default of any provision of these Terms. Customer shall assume all obligation and liability with respect to the possession of the Equipment, and for its use and operation and is solely responsible for ensuring use of the Equipment in a safe and appropriate environment only by Users that have received adequate training. Neither GameStrat nor its Affiliates or Representatives accept any responsibility for the way Customer or Users use the Equipment. GameStrat accepts absolutely no responsibility and will not be liable in any way for any inappropriate, incorrect, or improper use of the Equipment or any resulting harm therefrom.

4.6 Equipment Repair. The Customer shall be responsible for notifying GameStrat if Customer has issues accessing the Service using the Equipment or if the Equipment breaks down or is no longer functional. GameStrat will respond to the notice within seventy-two (72) hours, following which the parties shall agree to a mutually acceptable time for GameStrat to inspect the Equipment, either remotely or at the Installation Location. Following inspection of the Equipment, GameStrat shall use commercially reasonable efforts to restore functionality of the Equipment at a time and cost mutually agreed upon by the parties. Upon determining that the Equipment is defective and requires a replacement, the parties will work together to facilitate the return of the defective Equipment and the shipment of the repaired Equipment or replacement Equipment. GameStrat will only issue refunds or replacement Equipment subject to the terms of the Refund and Warranty Policy. For Equipment being returned for repair, risk of loss is borne by Customer for return shipment of the Equipment to GameStrat.

5. Fees and Payment.

5.1 Fees. Customer shall pay GameStrat the Fees, all as specified in the applicable Order. Unless otherwise set out in an Order, Fees will be invoiced annually for each calendar year of the Term until the end of the Term, beginning on the Effective Date. During the Term (including any Renewal Term), GameStrat reserves the right to increase Fees it charges for the Service on an annual basis. GameStrat will provide Customer with sixty (60) days’ prior written notice of any such Fee increases and the new Fees will be applied on the Customer’s next invoice. Customer shall be solely responsible for any Fees incurred by a User beyond what is indicated in an Order.

5.2 Invoicing and Payment. GameStrat reserves the right to collect Fees via a Third-Party Service or via invoice. All amounts are payable in the currency specified in the applicable Order or, if not so specified, in US dollars. Unless otherwise stated in an invoice, invoiced Fees are due net thirty (30) days from the invoice date. Invoices will be deemed accepted and undisputed by Customer if they are not disputed within fifteen (15) days of the invoice receipt date. The Customer is responsible for maintaining complete and accurate billing and contact information with GameStrat.

5.3 Changes to Tier. If Customer’s modification to their Service plan results in changes to Fees, the new Fees will be effective and billed on the first day of the subsequent billing cycle. Customer acknowledges and agrees that downgrading a Service plan may cause the loss of access to certain Service features or customizations.

5.4 Overdue Payments. Any Fees not received from Customer by the applicable due date may accrue (except with respect to Fees then under reasonable and good faith dispute), at GameStrat's discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

5.5 Taxes. Unless otherwise stated, Fees do not include any direct or indirect local, state, provincial, federal, or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on GameStrat's net income or property. If GameStrat has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides GameStrat with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.6 Suspension of Service. If any invoice is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, GameStrat reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.

6. Proprietary Rights.

6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, GameStrat and its licensors reserve all rights, title and interest in and to the Service and User Guide (as applicable), the Background Technology, and any enhancements and/or modifications to the Background Technology (including all related Intellectual Property Rights), regardless of: (i) whether GameStrat contributed any such enhancements and/or modifications; or (ii) whether any such enhancements and/or modifications were made during the Term. GameStrat’s templates and processes are deemed Background Technology, and nothing shall stop GameStrat from using the same templates and processes for its other customers. No rights are granted to the Customer hereunder other than as expressly set forth in these Terms.

6.2 Customer Data. As between GameStrat and Customer, Customer exclusively owns all rights, title, and interest in and to all Customer Data. Customer Data is deemed Customer’s Confidential Information under these Terms. GameStrat shall not access User accounts, including Customer Data, except to respond to service or technical problems, at Customer's request, or as necessary for the operation of the Service or billing of Fees. To the extent Customer Data contains Personal Information, GameStrat will handle such Customer Data in accordance with Privacy Laws. Customer hereby grants GameStrat a non-exclusive, non-transferable, irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to process, store and otherwise use the Customer Data as reasonably required to provide the Service.

6.3 Statistical Information. GameStrat may create aggregated or anonymized statistical analytics arising from Customer’s and Users’ interaction with and use of the Service (“Aggregated Statistics”), which Aggregated Statistics shall not include any underlying Customer Data, nor shall they otherwise be capable of referencing back to an identifiable individual. As between Customer and GameStrat, GameStrat shall own all rights to such Aggregated Statistics free from encumbrance.

6.4 Suggestions. GameStrat shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other GameStrat products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its Affiliates, Representatives, or Users relating to the Service.

7. Confidentiality.

7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation the terms and conditions of these Terms (including pricing and other terms reflected in all Orders hereunder), the Customer Data, the Service, Installation Location(s), and either party’s Intellectual Property. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party's prior written permission.

7.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

7.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in these Terms, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

8. Warranties and Disclaimers.

8.1 General Warranties. Each party warrants that it has the legal power to enter into these Terms and meet its Agreement obligations. GameStrat warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof, and provide maintenance and support in accordance with these Terms; (ii) the Service shall perform materially in accordance with the User Guide; and (iii) the Software will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in Customer Data imported into the Service or otherwise originating from Customer or a User).

8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, GAMESTRAT MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICE IS PROVIDED TO CUSTOMER "AS IS"; GAMESTRAT DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES GAMESTRAT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. GAMESTRAT’S RESPONSIBILITY FOR CLAIMS IN RESPECT TO THE OPERATION OF EQUIPMENT IS LIMITED TO THE SERVICING OF THE PRODUCT AS DETAILED IN THE REFUND AND WARRANTY POLICY.

9. Mutual Indemnification.

9.1 Indemnification by GameStrat. Subject to the terms and conditions of these Terms, GameStrat shall, at its own expense, defend Customer in any action, suit or proceeding by a third party alleging that the Service infringes or misappropriates any Intellectual Property Rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by GameStrat and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by GameStrat: (i) Customer shall notify GameStrat promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give GameStrat sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with GameStrat in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without GameStrat’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.

9.2 Mitigation. If: (a) GameStrat becomes aware of an actual or potential IP Claim; or (b) Customer provides GameStrat with notice of an actual or potential IP Claim, GameStrat may (or in the case of an injunction against Customer, shall), at GameStrat’s sole option and determination: (i) procure for Customer the right to continue to use the Service without infringement; (ii) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (iii) if (i) or (ii) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Fees for any periods after such termination, less any outstanding Fees owed by Customer to GameStrat.

9.3 Exclusions. The obligations in Sections 9.1 and 9.2 do not extend to: (i) any IP Claim based upon infringement or alleged infringement of any Intellectual Property Rights by the combination of the Service with other products, software or services not provided by GameStrat; (ii) any IP Claim related to any Customer Data or Third-Party Service; or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service not approved by the User Guide or outside the scope of the rights granted in these Terms.

9.4 Indemnification by Customer. Customer shall defend, indemnify and hold GameStrat and its Affiliates and Representatives (the “GameStrat Indemnitees”) harmless against any and all claims, actions, allegations, damages, losses, liabilities and expenses (of whatever form or nature, including, without limitation, reasonable attorneys’ fees and expenses and all costs of litigation), whether direct or indirect, that GameStrat Indemnitees or any related party may sustain as a result of any acts, errors or omissions of Customer, its Affiliates, or Users, including but not limited to: (i) breach of any of the provisions of these Terms; (ii) negligence or other tortious conduct, or willful misconduct; (iii) breach of a third party’s Intellectual Property Rights or rights under Privacy Laws; or (vi) claims arising in connection with Customer Data or Third-Party Services (each a “Customer Claim”). As conditions for such defense and indemnification by Customer: (I) GameStrat shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (II) GameStrat shall give Customer sole control of the defense and settlement of such Customer Claims; (III) GameStrat shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (IV) GameStrat shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto. Customer acknowledges that for the purpose of this Section 9.4, GameStrat is acting as agent of GameStrat Indemnitees.

10. Limitation of Liability.

10.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER TO GAMESTRAT HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3 Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THESE TERMS SHALL APPLY TO: (I) DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (II) DAMAGES ARISING FROM A PARTY’S INFRINGEMENT AND/OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THESE TERMS.

11. Term and Termination.

11.1 Term. These Terms shall commence as of the Effective Date and shall continue in effect for a period of one (1) year, unless otherwise specified in the applicable Order (such initial term referred to in these Terms as the “Initial Term”). Thereafter, the Term shall be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in these Terms as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.

11.2 Termination for Cause. A party may terminate these Terms for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Upon any termination for cause by Customer, GameStrat shall refund Customer any pre-paid Fees for any periods after the termination of these Terms.

11.3 Effect of Termination. Upon termination, except as expressly set forth herein, all licenses and rights granted by GameStrat to Customer hereunder shall terminate. Termination or a notice of non-renewal per Section 11.1 shall not limit Customer’s obligation to pay Fees incurred and owing and within thirty (30) days of the effective day of termination, Customer shall pay to GameStrat all Fees owing up to and including the effective date of termination. In the case of any attempted early termination by Customer not permitted by these Terms, Customer shall be obligated to pay all outstanding or incurred Fees (including, without limitation, Fees for the period between the end of the agreed-upon Term and the date of Customer’s early termination), including any interest incurred per Section 5.4. The following provisions shall survive any termination or expiration of these Terms: Sections 2.4, 3.2, 3.5, 5-10, 11.3, 11.4, and 12.

11.4 Termination and Equipment. Within thirty (30) days of the effective date of termination or expiration of these Terms: (i) Customer shall return leased Equipment to GameStrat and shall be responsible for complying with Section 4.3 with respect to Equipment returns and damage; or (ii) the parties shall engage in good faith negotiations for Customer to purchase the leased Equipment, with applicable fees to be negotiated by the parties at time of negotiation or purchase. Equipment purchase may require Customer to enter into additional terms with GameStrat.

12. General Provisions.

12.1 Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.2 No Third-Party Beneficiaries. Except as expressly provided in these Terms, there are no third-party beneficiaries to these Terms.

12.3 Subcontractors. GameStrat may retain the services of independent contractors or consultants, which may include Third-Party Services (“Subcontractors”) from time to time to assist GameStrat in performing its obligations under these Terms. Subcontractors shall remain under the direction and control of GameStrat. GameStrat shall, in the performance of its obligations under these Terms, use reasonable efforts to comply with all Customer policies, procedures and rules pertaining to Subcontractors that have been communicated to GameStrat in writing.

12.5 Notices. All notices under these Terms shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices shall be addressed to the applicable party’s signatory as set out on the Order.

12.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

12.7 Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.

12.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, GameStrat may assign these Terms in its entirety (including all Orders), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, shares or assets. Any attempt by a party to assign its rights or obligations under these Terms in breach of this section shall be void and of no effect. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.9 Governing Law. These Terms shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to these Terms. The application of the United Nations Convention on Contracts for the International Sale of Goods to these Terms is expressly excluded.

12.10 Venue; Waiver of Jury Trial. The provincial and federal courts located in Ottawa, Ontario, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these Terms. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms.

12.11 Dispute Resolution. Before initiating arbitration or other legal action against the other relating to a dispute herein, the parties agree to work in good faith to resolve disputes and claims arising out of these Terms. If the dispute is not resolved within thirty (30) days of the commencement of informal efforts hereunder, the parties will attempt to settle it in good faith by mediation. To initiate the mediation a party must give notice in writing to the other party requesting mediation. A copy of the request should be sent to ADR Chambers. The mediation will take place in Ottawa, Ontario and the language of the mediation will be English. The mediation shall be governed by and construed and take effect in accordance with the substantive law of the Province of Ontario. If the dispute is not settled by mediation within thirty (30) days of commencement of the mediation or within such further period as the Parties may agree to in writing, the dispute shall be referred to and finally resolved by binding arbitration at ADR Chambers. The arbitration shall be governed by the applicable rules of the Arbitration Act (Ontario), and arbitration proceedings shall take place in Ottawa, Ontario before one (1) arbitrator. In the event the Parties are unable to agree as to the appointment of an arbitrator for any reason, then such arbitrator shall be selected randomly by ADR Chambers. Each Party shall bear its own legal costs in connection with mediation and/or arbitration under this provision.

12.12 Force Majeure. Neither party shall be responsible for its failure to perform its obligations under these Terms to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service GameStrat or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.

12.13 Export. Customer acknowledges and agrees that the Equipment may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Equipment.

12.14 Entire Agreement. These Terms, including all Orders, constitute the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions in the body of these Terms and any Order, the terms of such Order shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of these Terms, and all such terms or conditions shall be null and void.