Recitals:
DoorWay agrees to provide access to the Platform, and Technician agrees to use the Platform, pursuant to the terms herein, as follows:
1.1 Subject to and conditional on the Technician’s strict compliance with all the terms set forth in this Agreement, DoorWay hereby grants to Technician a limited, non-exclusive, non-assignable/nontransferable license to access and use the Platform, solely as set forth in this Section 2, and subject to all conditions and limitations found otherwise in this Agreement.
1.2 Technician shall not use the Platform or any related materials or content or Confidential Information of DoorWay except as specifically authorized under this Agreement, and any attempt by Technician to develop, sell, license, or otherwise use the Platform or the same or similar content or Confidential Information of DoorWay for its own profit or the profit of its affiliates, employees, agents and consultants is strictly prohibited.
1.3 Technician shall not, directly or indirectly:
1.4 For the purpose of this Agreement, “Confidential Information” shall mean all information, written or oral, provided by DoorWay to Technician or through use of the Platform, which is or may be either applicable to or related in any way to the assets, business or affairs of DoorWay or its affiliates, together with all other documents seen or prepared, in whole or in part by DoorWay, that pertain to this Agreement or the services provided hereunder.
2.1 Technician shall have access to certain work projects or service tickets (each a “Work Order”) through the Platform. If Technician shall accept any work through the Platform, Technician shall be exclusively responsible for the quality of services (the “Services”), and anything else required to complete the Services, including materials, personnel and equipment.
2.2 The Services will be performed in a high quality manner in compliance with the requirements of all federal, provincial and local government authorities, and in accordance with best industry practices.
2.3 Technician shall perform the Services in compliance with this Agreement and shall cooperate with the Work Provider and any individual who the Work Provider shall require the Technician to interact with, as an independent contractor. Nothing herein shall render Technician as a partner, agent, representative, joint venture participant or employee of DoorWay and Technician shall not hold itself out as such. If other contractors are providing work to the job site at the same time as Technician, Technician shall cooperate with and coordinate workplace health and safety requirements of the job-site with such other contractors.
2.4 Technician shall establish a safety program implementing safety measures, policies and standards. Technician shall give timely notices as required by and to the applicable local authorities having jurisdiction over the Services, and shall be responsible for assessments, inspections, testing, and taxes necessary to complete the Services.
2.5 Technician shall at all times keep the jobsite clean and free from debris resulting from the Services, properly store equipment and material, and maintain a safe work site. Technician shall perform all work in a timely manner and pursuant to the terms of each Work Order. If Technician shall require a modification to a Work Order, Technician shall submit such a request in writing through the Platform to the relevant Work Provider. Technician shall not be entitled to compensation of any kind until a change to a Work Order is submitted and accepted by the Work Provider.
3.1 Any acceptance by the Technician of any Work Order, or the provision by Technician of any Services under this Agreement shall constitute acceptance of the Work Order and Technician shall abide by the terms of such Work Order as set out on the Platform, and pursuant to this Agreement.
4.1 DoorWay shall, upon receipt of payment from the Work Provider and confirmation from both Technician and Work Provider of satisfactory provision of the Services and completion of the Services, will pay the Technician pursuant to the terms of the Work Order, less the applicable fees of DoorWay for usage of the Platform.
4.2 The applicable fees of DoorWay shall be set out in Schedule A to this Agreement.
4.3 Technician shall keep full and detailed accounts and records necessary for the documentation of the cost of performing the Services.
4.4 No payment by DoorWay shall limit DoorWay’s right to later dispute any of the charges invoiced and payment shall not be construed as DoorWay’s acceptance of the Work Order.
5.1 Prior to accepting any Work Order, Technician shall procure, maintain and pay for such insurance as required for compliance with all applicable laws and is listed as required pursuant to each relevant Work Order from authorized insurers. The insurance shall be maintained uninterrupted for the duration of this Agreement and any warranty periods for Services performed under this Agreement.
5.2 Certificates of Insurance shall be issued to Technician prior to Technician accepting any Work Order or commencing Services under this Agreement. Renewal certificates shall be obtained by the Technician prior to the expiration date of any of the required policies. DoorWay shall not be obligated to review certificates or other evidence of insurance, and receipt thereof shall not relieve Technician from, nor be deemed a waiver of DoorWay’s right to enforce, the terms of Technician’s obligations hereunder.
5.3 Prior to accepting any Work Order, the Technician and others performing Services on behalf of Technician shall procure, maintain and pay for such accreditation, license(s) and/or other qualifications (collectively “Licenses”) for provision of services in Schedule A in compliance with all applicable laws. The Licenses shall be maintained uninterrupted for the duration of this Agreement.
5.4 DoorWay shall not be obligated to review accreditation, license and/or other qualification requirements for services in Schedule A. DoorWay shall not be obligated to review the Licenses of the Technician and others performing Services on behalf of Technician, or to advise Technician of any deficiencies in such License documents, and receipt thereof shall not relieve Technician from, nor be deemed a waiver of DoorWay’s right to enforce, the terms of Technician’s obligations hereunder.
6.1 Technician shall not assign or subcontract the whole or any part of any Work Order, Services or this Agreement without prior written approval of DoorWay, which approval may be withheld by DoorWay’s sole discretion.
7.1 To the fullest extent permitted by law, Technician shall defend, indemnify and hold harmless DoorWay, Work Providers, tenants and their respective directors, officers, and employees, agents, consultants, for any claims, loss, or damage arising out of or related to Technician’s Services, but only to the extent caused by the negligent acts or omissions of the Technician, the Technician’s subcontractors, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable.
8.1 The term of this Agreement shall begin on the date hereof and continue until the terminated in accordance with the termination provisions herein.
8.2 Technician may terminate this Agreement at any time, upon providing DoorWay with not less than thirty (30) days prior written notice of termination.
8.3 In addition to DoorWay’s rights and remedies under this Agreement and at law and equity, and notwithstanding the commencement of Services, DoorWay may cancel all or any part of a Work Order, this Agreement, or both, immediately upon giving written notice of cancellation to Technician:
9.1 The legal interpretation of this Agreement shall be governed by the laws of the Province of Ontario and the federal laws applicable therein, and the parties each irrevocably attorn to the jurisdiction of the courts of the Province of Ontario, and all courts competent to hear appeals therefrom.
9.2 In the event of a conflict between this Agreement and any other document, this Agreement shall take precedence.
9.3 Any notice, demand or other document to be given, or any delivery to be made hereunder shall be effective if in writing and delivered in person and left with, or sent by email addressed to the attention of the parties set out on the cover page hereof.
9.4 Any notice, demand or other document or delivery so given or made shall be deemed to have been given or made and received at the time of delivery in person sent by email. Any party hereto may from time to time by notice in writing change his or its address (or in the case of a corporate party, the designated recipient) for the purposes of this Section.
9.5 This Agreement may be executed in several counterparts and exchanged by electronic communication, each of which shall be deemed to be an original, and all counterparts, taken together, shall constitute one and the same instrument.
9.6 The parties expressly agree that both parties had opportunity to negotiate terms and to obtain assistance of counsel in reviewing terms prior to execution of this Agreement. This Agreement is constructed neither against nor in favor of either party, but is constructed in a neutral manner. This Agreement shall be binding upon and enure to the benefit of the parties and their successors and assigns.
THE PARTIES, INTENDING TO BE LEGALLY BOUND, executed this Agreement as of the date first set forth above.
THIS AGREEMENT (“Agreement”) is entered into between Customer and Doorway Technologies Inc. (“DoorWay”) and is effective as of the date of execution by both Parties.
In consideration for the limited rights to use and access the Platform hereunder and pursuant to the terms set out in Schedule A, and for other good and valuable consideration, Customer and DoorWay (each a “Party”, and collectively the “Parties”) hereby agree as follows:
Term: (the “Term”) The date that both Customer and DoorWay have executed this agreement until terminated by either Party.
Start Date: (the “Start Date”) will be executed upon acknowledged receipt of the PLATFORM
AGREEMENT by the (“Customer”) and is effective as of the date of execution by both Parties.
In this Agreement, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
1.1. “Confidential Information” means any information relating to DoorWay’s business that is of a confidential or proprietary nature, whether or not identified as confidential or proprietary, including the Platform, the Intellectual Property Rights in and to the Software, pricing, customers, suppliers, and products, but excluding information which Customer can demonstrate (a) was available to or known by the public before the disclosure by DoorWay to Customer as contemplated under this Agreement, (b) is or was obtained from a source other than DoorWay or any person bound by a duty of confidentiality to DoorWay or (c) is or becomes available to or known by the public other than as a result of improper disclosure by Customer.
1.2. “Documentation” means the written materials relating to the Software that are made available by DoorWay to Customer in conjunction with the Software, including, without limitation, the Confidential Information and any and all instructions, beta testing, pilot partnerships, free trial or regular usage guidelines, user manuals, warnings and cautions relating to the use or access of the Software.
1.3. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights under any statute, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order, or other requirement or rule of law of any governmental authority, and all similar or equivalent rights or forms of protection, in any part of the world.
1.4. “Platform” means the Software and the Documentation.
1.5. “Software” means DoorWay’s automated property maintenance software tool and all other applicable software products owned or held for use by DoorWay and licensed to Customer pursuant to the terms of this Agreement, including any and all Updates.
1.6. “Updates” means all revisions, customizations, enhancements, improvements and modifications in and to the Software from time to time during the Term, including, without limitation, any and all alterations or adjustments to the user interface, screen displays, font, functionality or other performance specifications of the Software.
2.1. Platform Functionality. The Platform will allow the Customer to, among other things: (a) automate its maintenance management processes; (b) tender bids for and purchase maintenance services from a directory of third-party technicians or service providers; (c) communicate with occupants and/or tenants of the Property regarding property maintenance work requests; and/or (d) reporting on maintenance metrics (collectively the “Services”).
2.2. Authorized Users. Subject to the terms of this Agreement and to the Terms of Use (defined below), DoorWay grants to Customer, its authorized employes and contractors (“Authorized Users”) a limited, non-exclusive, non-transferable, non-sublicensable, revocable and terminable license to use and access the Platform and the Services, as permitted by the functionality of the Platform. Prior to permitting access to the Platform, DoorWay may require Authorized Users to create a unique username and password (“Credentials”) [and all Authorized Users to accept the applicable terms of use posted on app.doorway-mgmt.com (“Terms of Use”)], and all rights of access and use are conditioned on the Authorized Users’ [acceptance of and continued compliance with the applicable Terms of Use].
2.3. Limited License. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Platform.
2.4. Updates to Platform. From time-to-time DoorWay may, at its option, develop or otherwise provide Updates to the Platform. All Updates integrated into or used in connection with the Platform shall be deemed part of the Platform and the Services for all purposes under this Agreement and, unless expressly provided otherwise in advance, shall be provided to Customer at no additional cost. DoorWay reserves the right to modify the Platform and the Services as it deems necessary or desirable at any time, and from time to time without notice to Customer.
2.5. Third Party Products. The Platform includes products, services and software supplied by third parties (“Third Party Products”). Third Party Products supplied under this Agreement are licensed for use solely with the Platform and may not be used on a standalone basis or with any other third-party products except as part of the Platform. Third Party Products may be subject to additional license terms and restrictions, and Customer agrees to comply with any and all such terms upon written notice by DoorWay. Third Party Products are supplied AS IS, without any warranty, express or implied. DoorWay reserves the right to remove or add Third Party Products without notice to Customer, provided that the functionality of the Platform shall remain substantially the same. The Platform may include open-source software that is subject to additional license terms, and DoorWay agrees to comply with any and all such terms.
General Obligations. Customer is responsible for all aspects of the operation of its property management business. Customer is solely responsible for (a) communicating with tenants, occupants, technicians and other service providers, including creating and approving tickets, requesting bids for maintenance work on the Property; (b) providing the technician or other service provider with free and clear access to provide any maintenance work at the Property; (c) selecting technicians and/or service providers and confirming they have the requisite licensing and/or technical know-how to perform the maintenance work for which they are being retained; (d) paying the technicians and/or service providers that have performed any work at the Property; (e) giving Authorized Users, occupants and tenants with notice of privacy practices in connection with the Platform and obtaining consent or acknowledgement from Authorized Users, occupants and tenants sufficient for the Services to comply with all laws and regulations; and (f) complying with all applicable laws, rules, regulations applicable to the Customer’s activities.
Access by Authorized Users. Customer is solely responsible for all use of the Platform and the Services by Authorized Users and for all activity that occurs under the Credentials of Authorized Users, including any breach of the Terms of Use by Authorized Users. Customer shall notify DoorWay immediately if Customer becomes aware of or suspects any unauthorized or unpermitted access to or use of the Platform or the Services by Authorized Users. Customer shall terminate the Credentials of any of its employees or contractors who do not comply with this Agreement or whose employment or other relationship with Customer is terminated. Customer acknowledges and agrees that DoorWay may suspend or terminate any Authorized User’s access to the Platform and the Services as permitted by the applicable Terms of Use, without any obligation to provide notice to Customer regarding such suspension or termination.
Documentation. Customer agrees to familiarize itself, and cause the Authorized Users to familiarize themselves, with the Documentation as necessary.
No Reproduction or Exploitation. Customer may not copy or reproduce the Platform, including the Documentation and all copies thereof, without DoorWay’s prior written consent, except as reasonably required to perform its obligations hereunder. Customer shall not remove or deface any portion of any copyright notice or other legend provided on or comprising of any part of the Platform. Customer agrees it will not make any commercial exploitation of the Platform and will not create any competing product to the Platform.
Maintenance. Customer agrees to secure and protect the Platform, and shall cause Authorized Users to secure and protect the Platform, including the Documentation and all copies thereof, in a manner consistent with the maintenance of DoorWay’s Intellectual Property Rights therein.
No Reverse Engineering. Customer shall not, and shall ensure that no Authorized User or other third party who receives access to the Platform and Services from Customer is permitted to, reverse engineer, alter, modify, disassemble, decode, decompile or attempt to reconstruct or gain access to the source code or underlying ideas or algorithms of the Services or the Platform by any means whatsoever.
Feedback. Customer shall notify DoorWay of any and all functional flaws, perceived defects, errors, anomalies and other problems directly or indirectly associated with the Platform or Services known to or discovered by Customer (collectively, “Feedback”). Customer agrees to promptly respond to any and all reasonable inquiries, questionnaires, surveys, and other test documents submitted to Customer by DoorWay from time to time during the Term.
Restrictions on Use. Customer shall only use, and shall ensure that its employees and contractors shall only use, the Platform for lawful purposes and in compliance with this Agreement. Customer shall not and shall ensure that its employees and contractors do not, use the Platform to: (a) violate any applicable law; (b) impersonate or use the identity of another person or organization, or falsely state or otherwise misrepresent an affiliation with a person or organization; (c) engage in any activities or manipulate identifying material to misrepresent the origin of content; (d) disseminate any information or content, including by e-mail, that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or information or content that could otherwise be considered to be objectionable; (e) interfere with or otherwise limit the use of the Services or Customer’s networks by other users; (f) request, provide, or otherwise agree to work with a technician or other service provider listed on the Platform outside of the Platform to avoid paying fees, taxes or for any other reason; or (g) disrupt or interfere with the security of, or otherwise cause harm to, the Services or Customer’s networks, accounts, usernames or passwords. Customer reserves the right to suspend the Services, in whole or in part, and to suspend or terminate access to the Platform by any Authorized User if Customer determines in its reasonable discretion that Customer or Authorized User(s) has breached its obligations under this Section 0 or if continued access by Customer or Authorized User(s) threatens the safety or security of the Platform or any third party.
Additional Obligations. Customer shall be responsible for: (a) providing a proper computer environment and network for use of the Platform, including appropriate and compatible hardware and software, equipment, cabling, and Internet connectivity (and all costs associated thereto); (b) obtaining all rights necessary so that DoorWay may provide the Services and operate the Platform, including all rights held by Authorized Users, all consents and approvals required by applicable privacy laws and all rights, licenses and consents of other third parties; (c) responding to all privacy-related requests from occupants, tenants, and Authorized Users; (d) the accuracy of all information provided by Customer; and (e) compliance with the terms and conditions required by the vendors of all integrated third party services. Customer is solely responsible for its data backup procedures and policies and for any configuration of the Platform performed by any party other than by DoorWay.
DoorWay retains all right, title and interest in and to (a) the registered and unregistered trademarks and service marks of DoorWay; (b) all DoorWay’s Intellectual Property Rights; (c) the Services, including the Platform, all Updates, and all improvements, modifications, enhancements or derivative works to the foregoing; (d) Confidential Information; (e) any
Feedback provided by the Customer or the Authorized Users; and (f) any and all reports
and analytics generated DoorWay, evaluation results, reports of errors, problems or defects and suggestions related to the Services.
The “Fees” shall mean all fees paid or owed by the Customer pursuant to this Agreement. This shall include all fees set out in the cover page of this Agreement, all fees set out in Section 5.2 hereof, and any and all late charges, fees or other costs set out herein.
The fees set out in the cover page of this Agreement are based on the number of Properties, Units and Authorized Users set out in the cover page. If the Customer shall add any further Properties, Units and/or Authorized Users, the fees shall be increased as follows:
Termination for Convenience. Either Party may terminate this Agreement at any time, upon providing the other Party with not less than 30 days written notice of termination.
Doorway Termination. In addition to DoorWay’s rights and remedies under this Agreement and at law and equity, and notwithstanding the commencement of Services, DoorWay may terminate this Agreement immediately upon giving written notice of cancellation to Customer:
6.1.1. at any time without cause; or
6.1.2. upon the occurrence of any of the following:
6.1.2.1. Customer makes an assignment for the benefit of creditors, admits in writing its inability to pay debts as they become due, becomes insolvent, institutes or is the subject of any proceedings under any applicable law for relief of debtors, insolvency, receivership, bankruptcy, winding-up, dissolution, or the Companies’ Creditors Arrangement Act (Canada) (or similar legislation), appoints a receiver, trustee, monitor or liquidator over any assets of Customer, has any of its equipment become subject to an attachment, or Customer ceases to carry on business;
6.1.2.2. Customer is in default of any of its other obligations hereunder and fails to remedy such default within the time expressly provided for in this Agreement and, if no such time is expressly provided for, then within three (3) days or any other shorter or longer time period specified by DoorWay in its sole discretion, after receipt of notice of default; or
6.1.2.3. as otherwise provided in this Agreement.
DoorWay may terminate or suspend Customer’s access to the Platform at any time if Customer has, or DoorWay shall reasonably believe that Customer has, breached any term of this Agreement or any service provisions herein.
6.2. Obligations upon Termination. Upon the termination of this Agreement, the license granted hereunder shall terminate and Customer agrees (a) to cease using and return the Platform, including the Documentation and all copies thereof in the Customer’s possession, to DoorWay within 10 days after such termination or (b) upon DoorWay’s request, to delete and destroy all copies of the Confidential Information and certify to DoorWay in writing that the Confidential Information has been deleted and destroyed.
6.3. Survival. Termination of this Agreement shall not affect any rights or obligations which have accrued under this Agreement and shall not relieve either party from its obligations which may have arisen prior to such termination. The provisions of, and the obligations of the parties under: Payment Terms, Section 4 (Confidential Information), Section 4 (Intellectual Property), Section 6.2, Section 8 (Disclaimer of Warranties), Section 9 (Indemnity; Limitation of Liability), and Section 10 (General) and any other provisions of this Agreement which, by its nature would survive the termination of this Agreement, shall survive the termination of this Agreement.
7.1. Customer acknowledges that it may have access to, and DoorWay may disclose to Customer, Confidential Information. Customer shall hold the Confidential Information in strict confidence and shall (a) use the Confidential Information solely for purposes of contemplated hereunder and shall not disclose, without DoorWay’s written consent, such Confidential Information to third parties or use such Confidential Information for its own benefit or for the benefit of third parties; provided, however, that if the Customer is required by any applicable law to disclose any Confidential Information, the Customer will provide DoorWay with prompt written notice of that requirement so that DoorWay may contest the disclosure of the Confidential Information and seek an appropriate protective order or other appropriate remedy and (b) disclose the Confidential Information only to those of its employees, agents and representatives who need to know such Confidential Information for the purposes contemplated hereunder and shall ensure that such employees, agents and representatives observe the confidentiality obligations in this Section 7.1. The obligations and covenants under this Section 7.1 will be perpetual.
8.1. THE PLATFORM MAY CONTAIN ERRORS, BUGS AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURE. DOORWAY RESERVES THE RIGHT TO MODIFY THE PLATFORM VERSION TO THE NEXT AT ANY TIME, INCLUDING, WITHOUT LIMITATION, ANY MODIFICATIONS TO THE USER INTERFACE, SCREEN DISPLAYS, FONT OR FUNCTIONALITY, AND ANY RELIANCE ON THE PLATFORM IS AT CUSTOMER’S OWN RISK. CUSTOMER ACCEPTS THE PRODUCT “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES WHATSOEVER. DOORWAY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES WITH RESPECT TO THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. DOORWAY ASSUMES NO LIABILITY FOR THE PLATFORM’S USE OR PERFORMANCE. DOORWAY SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES OF ANY KIND OR NATURE CAUSED BY THE USE, UNAVAILABILITY OR OTHERWISE RELATED TO THE PLATFORM IN ANY WAY. CUSTOMER IS SOLELY RESPONSIBLE FOR THE ACCURACY OF ALL DATA AND INFORMATION INCORPORATED INTO THE PLATFORM BY OR ON BEHALF OF CUSTOMER, INCLUDING ALL DATA AND INFORMATION MADE AVAILABLE BY CUSTOMER THROUGH THE PLATFORM AND/OR THE SERVICES.
9.1. Indemnity. To the fullest extent permitted by law, Customer shall defend, indemnify and hold harmless DoorWay and its respective directors, officers, and employees, agents, consultants, for any claims, loss, or damage arising out of or related to: (a) any breach of or failure to comply with this Agreement by Customer; (b) any breach or failure to comply with the Terms of Use by an Authorized User; (c) any unauthorized use of Services or the Platform by Customer or Authorized Users; and (d) the negligence, gross negligence or willful misconduct of Customer, its employees, contractors, agents, representatives, or anyone for whose acts they may be liable.
9.2. Limitation of Liability.
9.2.1. DOORWAY IS NOT RESPONSIBLE OR LIABLE (A) FOR ANY PERFORMANCE FAILURES OR DELAYS CAUSED, IN WHOLE OR IN PART, BY CUSTOMER,
CUSTOMER’S NETWORKS OR SYSTEMS, CUSTOMER’S USE OF THE PLATFORM, OR CUSTOMER’S EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, OR TENANTS AND/OR OCCUPANTS OF THE PROPERTY, (B) FOR THE PROCESSING OF PAYMENTS FOR PROPERTY MAINTENANCE SERVICES OR FOR THE PERFORMANCE OF PROPERTY MAINTENANCE SERVICES PROCURED THROUGH THE PLATFORM, OR (C) FOR THE ACTS OMISSIONS, AND/OR NEGLIGENCE OF CUSTOMER OR ITS AUTHORIZED USERS, (D) FOR THE PERFORMANCE OR AVAILABILITY OF OR PERFORMANCE FAILURES CAUSED IN WHOLE OR IN PARTY BY INTEGRATED THIRD PARTY SERVICES, (E) ANY DELAY, DAMAGE, OR LOSS CAUSED IN WHOLE OR IN PART BY THIRD PARTY PRODUCTS, OR THIRD PARTY SOFTWARE, HARDWARE, OR SYSTEMS, AND (F) ANY DELAY, DAMAGE, OR LOSS CAUSED BY ANY TECHNICIAN OR SERVICE PROVIDER CONTRACTED BY THE CUSTOMER TO PERFORM PROPERTY MAINTENANCE WORK, REGARDLESS OF WHETHER SUCH TECHNICIAN OR SERVICE PROVIDER WAS POSTED ON THE PLATFORM.
9.2.2. IN NO EVENT SHALL DOORWAY, OR ANY OF ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, TRANSACTION LOSSES, OPPORTUNITY COSTS, INTERRUPTION OF BUSINESS, COSTS OF PROCURING SUBSTITUTE GOODS OR COSTS OF LOST OR DAMAGED DATA) ARISING FROM OR RELATED TO THIS AGREEMENT, THE PLATFORM, OR THE SERVICES WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE DOORWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DOORWAY’S TOTAL AGGREGATE LIABILITY TO CUSTOMER OR TO ANY OTHER THIRD PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CUSTOMER TO DOORWAY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE WHEN SUCH CLAIM FIRST ACCRUED.
10.1. Waiver. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition but shall apply solely to the instance to which such waiver is directed.
10.2. Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns. Customer agrees not to assign any rights under this Agreement without the prior written consent of DoorWay. Any attempted assignment shall be null and void and shall result in the termination of this Agreement.
10.3. Severability. If any part of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement which shall remain in full force and effect.
10.4. Governing Law. This is governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable in that Province. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or provincial courts located in the City of Toronto and the parties hereby irrevocably attorn to the personal jurisdiction therein.
10.5. Conflicts. In the event of a conflict between this Agreement and any other document, this Agreement shall take precedence.
10.6. Entire Agreement. This Agreement represents the entire agreement between the parties regarding the subject matter hereof and supersede any and all prior agreements between the parties, whether written or oral, regarding the subject matter hereof. This Agreement may not be modified or amended except by the written acceptance of both parties.
