Terms of service

Durable TERMS OF SERVICE

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These Terms of Service as amended from time to time (collectively the “Agreement”) form an agreement between the customer accessing and otherwise using the Durable SaaS Services (the “Customer”) and Durable, Inc. (“Durable”), the supplier of the Durable SaaS Services, and is entered into on the earlier of the date Customer first uses any part of the Durable SaaS Services and the date Customer agrees to be bound by this Agreement (the “Effective Date”). Each of Durable and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.

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This Agreement sets forth the terms and conditions that govern the provision and use of the Durable SaaS Services.

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BY USING THE DURABLE SAAS SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14(j). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE DURABLE SAAS SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO DURABLE THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE DURABLE SAAS SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO DURABLE THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

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THE DURABLE SAAS SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

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DURABLE’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE DURABLE SAAS SERVICES, EXCEPT WITH DURABLE’S PRIOR WRITTEN CONSENT.

Durable Saas Services
1. Provisioning of the Durable SaaS Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Durable will make the Durable SaaS Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement during the Term.
2. Restrictions on Use. Customer will not itself, and will not permit others to:
  1. sub-license, sell, rent, lend, lease or distribute the Durable SaaS Services or any Intellectual Property Rights therein, or otherwise make the Durable SaaS Services available to others other than Permitted Users;
  2. use the Durable SaaS Services to permit timesharing, service bureau use or commercially exploit the Durable SaaS Services;
  3. use or access the Durable SaaS Services:
    1. in violation of any applicable law;
    2. in a manner that threatens the security or functionality of the Durable SaaS Services; or
    3. for any purpose or in any manner not expressly permitted in this Agreement;
  4. use the Durable SaaS Services to create, collect, transmit, store, use or process any Customer Data:
    1. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
    2. that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
    3. that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
  5. Modify the Durable SaaS Services;
  6. reverse engineer, decompile or disassemble the Durable SaaS Services;
  7. remove or obscure any proprietary notices or labels on the Durable SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
  8. access or use the Durable SaaS Services for the purpose of building a similar or competitive product or service;
  9. perform any vulnerability, penetration or similar testing of the Durable SaaS Services; or
  10. use the Durable SaaS Services for any purpose or in any manner not expressly permitted in this Agreement.
3. Permitted Purpose. Customer may access and use the Durable SaaS Services solely for Customer’s internal business purposes.
4. Restricted Countries and Entities. Customer represents and warrants that it has not been listed on any U.S. or Canadian government list of prohibited or restricted parties. Customer represents and warrants that it is not located in any country that is subject to a U.S. or Canadian government embargo or designated by the U.S. or Canadian government as a “terrorist supporting” country.
5. Suspension of Access; Scheduled Downtime; Modifications. Durable may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
  1. suspend Customer’s access to or use of the Durable SaaS Services or any component thereof:
    1. if Customer or any Permitted User violates any provision of this Agreement;
    2. for scheduled maintenance;
    3. due to a Force Majeure;
    4. to address any emergency security concerns;
    5. if required to do so by a regulatory body or as a result of a change in applicable law; or
    6. for any other reason as provided in this Agreement.
  2. Modify the Durable SaaS Services.
  Customer is required to accept all patches, bug fixes and updates made by or on behalf of Durable to the Durable SaaS Services.
6. Subcontracting. Durable may engage third parties to assist it in providing the Durable SaaS Services or any part thereof.
7. Third-Party Products. The Durable SaaS Services may contain or require the use of Licensed Third Party Technology or other third party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Durable does not warrant or support Third-Party Products or other third party products, offerings or services, whether or not they are designated by Durable as “certified” or otherwise. Durable cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Durable. Durable is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
User Accounts
1. In order for Customer to access and use the Durable SaaS Services, Durable will issue one account (the “Customer User Account”) to Customer for use by Customer and all individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Durable SaaS Services (each, a “Permitted User”).
2. The Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Durable SaaS Services in compliance with this Agreement. The Customer will ensure that Permitted Users only use the Durable SaaS Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify Durable of any actual or suspected unauthorized use of the Durable SaaS Services. Durable reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
3. If Customer makes a request to have its Customer User Account deleted, Durable will retain such Customer User Account and any associated Customer Data for a period of seven (7) days from the date of the deletion request (the “Account Retention Period”). During the Account Retention Period, the Customer User Account will be inaccessible to the Customer, but Customer may request to have its Customer User Account restored by contacting Durable pursuant to Section 12. After the Account Retention Period, the Customer User Account will be permanently deleted as well as any associated Customer Data, excluding Customer Data that is required to be retained for longer in accordance with the Privacy Policy. Once the Customer User Account is permanently deleted, Customer will not be able to recover its Customer User Account.
Ownership; Reservation of Rights
1. The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Durable, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, transfer, transmit, copy, Modify and display Customer Data to:
  1. provide the Durable SaaS Services;
  2. create output generated and returned by the Durable SaaS Services (“Output”);
  3. improve and enhance the Durable SaaS Services and its other offerings; and
  4. produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”).
  Durable may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between Durable and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Durable.
2. As between Customer and Durable, Customer owns all Output. Durable hereby assigns to Customer all its right, title and interest in and to the Output. Customer acknowledges and agrees that due to the nature of machine learning, Output may not be unique or accurate. Customer is responsible for evaluating the Output and for ensuring that any Output is appropriate, accurate, complete, and does not violate any applicable laws. Customer is responsible for its use of the Output at all times.
3. Durable or its licensors retain all ownership and Intellectual Property Rights in and to:
  1. the Durable SaaS Services;
  2. anything developed or delivered by or on behalf of Durable under this Agreement (excluding the Output);
  3. all other Durable’s Confidential Information, including but not limited to, any reports generated from the Durable SaaS Services or any Aggregated Data; and
  4. any Modifications to the foregoing (i), (ii) and (iii).
  (collectively “Durable Property”).
4. Customer grants to Durable and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Durable SaaS Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of the Durable SaaS Services or any of Durable’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Durable is not obligated to use any Feedback.
5. All rights not expressly granted by Durable to Customer under this Agreement are reserved.
Privacy
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Customer understands that Personal Information will be treated in accordance with Durable’s privacy policy located at https://durable.co/privacy-policy (the “Privacy Policy”) or such other place as may be updated by Durable’s from time to time.
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Fees and Payment
1. Fees. Customer will pay to Durable the subscription fees as specified on the Website (the “Fees”). Unless otherwise noted in the Customer’s User Account: (i) all Fees are identified in United States dollars; (ii) Fees are payable in advance on a recurring basis; (iii) Fees are non-cancelable and non-refundable; and (iv) quantities purchased cannot be decreased during the relevant subscription term. If Customer’s use of the Durable SaaS Services exceeds a reasonable service capacity or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
2. Free Trial. Durable Technologies Inc may, at its sole discretion, offer access to the Durable SaaS Services with a free trial for a limited period of time (“Free Trial”). If Customer enters billing information when signing up for the Free Trial, Customer will not be charged by Durable until the Free Trial has expired. On the last day of the Free Trial period, unless Customer had cancelled its subscription to the Durable SaaS Services, Customer will be automatically charged the applicable Fees for the type of services selected. At any time and without notice, Durable reserves the right to (i) modify the terms and conditions of the Free Trial offer, or (ii) cancel such Free Trial offer.
3. Changes to the Fees. Durable reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 30 days prior notice to Customer.
4. Invoicing. Durable will prepare and send to the Customer, at the then-current contact information on file with Durable, an invoice for any Fees paid, and those that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 days of the invoice date.
5. Disputed Invoices or Charges. If the Customer believes Durable has charged or invoiced the Customer incorrectly, the Customer must contact Durable no later than 30 days after having been charged by Durable or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, the Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
6. Late Payment. The Customer may not withhold or setoff any amounts due under this Agreement. Durable reserves the right to suspend the Customer’s access to the Durable SaaS Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. Without limiting Durable other rights, Durable may suspend Customer’s access to or its performance of the Durable SaaS Services, if Customer has not paid the applicable Fees within 10 days of the date that such Fees become due.
7. Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Durable.
8. Suspension. Any suspension of the Durable SaaS Services by Durable pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
Confidential Information
1. Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
2. Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:
  1. disclose Confidential Information of the Discloser to any person, except to:
    1. in the case of Customer to its own employee having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writings; or
    2. in the case of Durable to Durable’s employees, consultants, agents or affiliates, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; to such other recipients as the Discloser may approve in writing; and to its subcontractors or contractors to perform the Durable SaaS Services;
  2. use Confidential Information of the Discloser; or
  3. alter or remove from any Confidential Information of the Discloser any proprietary legend.
  Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
3. Exceptions to Confidentiality. Notwithstanding Section 6(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
4. Return of Confidential Information. Upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 11(d) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Durable may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
Warranty and Disclaimer
1. Customer Warranty. Customer represents and warrants to and covenants with Durable:
  1. that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by and in compliance with applicable laws, including applicable privacy laws, to enable Durable to provide the Durable SaaS Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Durable and to or from all applicable third parties.
2. GENERAL DISCLAIMER. DURABLE DOES NOT WARRANT THAT THE DURABLE SAAS SERVICES (INCLUDING ANY CONTENT, DATA OR INFORMATION GENERATED THROUGH ARTIFICIAL INTELLIGENCE) WILL BE UNINTERRUPTED OR ACCURATE OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE DURABLE SAAS SERVICES. FOR CLARITY, CUSTOMER ASSUMES ALL RISK, NOT LIMITED TO, FOR: (I) CONTENT UPLOADED TO THE DURABLE SAAS SERVICES, (II) THE OUTPUTS GENERATED BY THE ARTIFICIAL INTELLIGENCE FEATURES OF THE DURABLE SAAS SERVICES, (III) ITS USE OF THE DURABLE SAAS SERVICES, AND (IV) ANY ACTION ARISING FROM OR RELATED TO ANY ALLEGATION THAT THE OUTPUTS GENERATED BY THE ARTIFICIAL INTELLIGENCE FEATURES OF DURABLE’S SAAS SERVICES INFRINGE ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE DURABLE SAAS SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY DURABLE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DURABLE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, DURABLE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE DURABLE SAAS SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, NON-INFRINGING OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
Images‍

The Durable SaaS Services provide Customer with access to a selection of digital stills and videos made available to Durable by third parties (the “Images”). Images are for use within the Durable SaaS Services only and may not be printed.
1. As of May 11, 2024, Images are provided by Getty Images (Canada), Inc. (“Getty Images”) and Unsplash, Inc. (“Unsplash”). The following restrictions apply to Customer’s use of the Images provided by Getty Images and Unsplash:
  1. Customer will use: (A) Images provided by Getty Images in accordance with the Getty Images Content License Agreement available at https://www.gettyimages.ca/eula; and (B) Images provided by Unsplash in accordance with the Unsplash Terms and Conditions available at https://unsplash.com/terms; and
  2. Customer will not: (A) sell, modify, re-use, or re-sell the Images on a stand-alone basis; (B) activate the “right-click” function in the Images, or reverse engineer, decompile, or disassemble the Durable SaaS Services to enable the download or use of the Images without payment of fees; or (C) obtain any ownership rights to the Images.
2. Previously, Images were provided by Shutterstock, Inc. (“Shutterstock”) As of July 05, 2024, Images are no longer provided by Shutterstock, however if Customer used the Images from Shutterstock to create campaigns or content, such campaigns or content may continue to use such Images but no new campaigns or content may be produced using such Images. The following restrictions apply to Customer’s use of Images previously provided by Shutterstock:
  1. Customer will not use such Images as a trademark for a business;
  2. Customer will not use such Images to portray a person in a way that may be offensive, including: (A) in connection with adult-oriented services or ads for dating services; (B) in connection with the promotion of tobacco products; (C) in connection with political endorsements; (D) with pornographic, defamatory, unlawful, offensive or immoral content; and (E) as suffering from, or being treated for, a physical or mental ailment; and
  3. Customer will only use such Images in campaigns and content created on the Durable SaaS Services, and not with other websites or content services.
Indemnities

The Customer will defend, indemnify and hold harmless Durable, and its officers, directors, employees and agents (each, a “Durable Indemnitee”) from and against any and all Losses incurred by a Durable Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an affiliate of a Durable Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Durable SaaS Services by the Customer or any Permitted User; (iv) any allegation the data, information or content generated by Customer, arising from the use of the Durable SaaS Services, infringe any third-party Intellectual Property Rights; or (v) use of the Durable SaaS Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service. Customer will fully cooperate with Durable in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Durable. For clarity, Customer assumes all responsibility for the data, information or content generated by the Durable SaaS Services, including those generated by artificial intelligence.
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Limitation of Liabilities

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
1. AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF DURABLE IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE DURABLE SAAS SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL DURABLE’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
2. TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL DURABLE BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
Term and Termination
1. Term. This Agreement will commence on the Effective Date and continue to be in effect for until the end of Customer’s subscription (the “Initial Term”). The Term will automatically renew for successive periods equivalent to the Initial Term (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term.
2. Termination by Durable. In addition, and not withstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Durable SaaS Services may be terminated or suspended by Durable at any time at Durable’s sole discretion. Durable may immediately terminate Customer’s right to use the Durable SaaS Services or this Agreement: (1) if Durable believes that Customer or any Permitted User has violated this Agreement; (2) if Durable believes the use of Customer Data with the Durable SaaS Services is not in Durable’s or its users’ best interests; (3) if Durable ceases to offer the Durable SaaS Services; or (4) as required by applicable laws.
3. Termination. Notwithstanding any other Section of this Agreement, Durable may, in its discretion, terminate the Agreement at any time by providing at least 30 days’ advance written notice to Customer. Durable may, in addition to other relief, terminate this Agreement if the Customer commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach. Durable may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
4. Effect of Termination. Upon expiration or termination of this Agreement, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using Durable SaaS Services and return any Durable Property in its possession and certify in writing to Durable that the Durable Property has been returned. In the event that applicable law, including without limitation privacy laws, does not permit Durable to comply with the delivery or destruction of the Customer Data, Durable warrants that it shall ensure the confidentiality of the Customer Data in accordance with applicable law. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. All Fees due and payable and any amounts due to Durable are immediately due and are to be immediately paid by Customer to Durable.
5. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 9 (Indemnities), Section 10 (Limitation of Liabilities), Section 11(e) (Survival), Section 13 (Notices), Section 14 (General Provisions), and Section 15 (Definitions).
Support Services

Customer will generally have access to Durable’s technical support: (i) via the website at https://help.durable.co/en-US, and (ii) via email through form listed at https://help.durable.co/en-US/contact (“Support Services”). Durable may amend the Support Services from time to time in its sole discretion.
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Notices

Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent:
1. if to Durable, to the following Durable’s address and email contact:
  
  Attention: Durable, Inc. Legal
  Email: team@durable.co; and
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2. if to Customer, to the current mailing or email address that Durable has on file with respect to Customer.
Durable may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Durable current at all times during the Term.
General Provisions
1. Assignment. Customer may not assign this Agreement to any third party without Durable’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section 14(a) will be null and void. Durable may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
2. Governing Law and Attornment. This Agreement and any Action related thereto will be governed by and construed in accordance with the laws of the British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Durable from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
3. Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Durable SaaS Services. Durable makes no representation or warranty that the Durable SaaS Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
4. Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
5. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 5, 6, or 9.
6. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
7. Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
8. Independent Contractors. Durable’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
9. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
10. Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, DURABLE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY DURABLE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
11. English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Definitions

As used in this Agreement, the following capitalized words have the meaning set out below:
1. “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or otherwise inputs to the Durable SaaS Services, including but not limited to Personal Information, excluding Aggregated Data and any other Durable Property.
2. “Durable SaaS Services” means: (i) the Durable SaaS Services through which Durable hosts and makes available the Durable SaaS Services as described on the Website and (ii) any component or Modification of the Durable SaaS Services referred to in (i).
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 laws, and all similar or equivalent rights or forms of protection, in any part of the world.
4. “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
5. “Loss” or “Losses” means any and all losses, damages, claims, Actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
6. “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
7. “Personal Information” means information about an identifiable individual provided by Customer under this Agreement.
8. “Website” means any websites used by Durable to provide the Durable SaaS Services, including the websites located at https://durable.co/.

Terms of Service

Last updated 6th November 2024