SAAS Subscription Services Agreement
Last updated October 22, 2021
Nook Technologies Inc. doing business as Nook Calendar ("Nook") provides a software as a service technology platform ("Platform") that enables the scheduling and management of bookings of workspaces, and advanced calendar capabilities (the "Service"). Access to the Platform and the Service are provided through Nook's websites which include nookcalendar.com, thenook.app and getnook.app and branded subdomains (the "Website") and the Nook mobile app ("App"). This Agreement applies to anyone signing up to create an account in order to access and use the Services provided under the terms of this Agreement and, to the extent applicable, users who simply view the content on or available through the Website or App ("You"/"Administrator").
THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SUBSCRIPTION FORM THAT REFERENCES THIS AGREEMENT ("SUBSCRIPTION FORM"), YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES.
1. The Nook Service
1.1. The Service has been created for use by:
Entities managing a place of work ("Workplace") for their own staff, employees, contractors and sub-contractors ("Enterprise Administrators");
Entities operating a Workplace as a co-working space ("Co-working Administrators" and, together with Enterprise Administrators, "Administrators"); and
Individuals ("Users") who want to use the Nook Calendar App (“Calendar”) and, or work in or otherwise use those Workplaces, whether as employees, contractors, tenants or otherwise (eg. persons invited to attend meetings at a Workplace).
1.2. The Service for Enterprise Administrators
The Service may be used by Enterprise Administrators for the purposes more particularly described on the Website from time to time. Subscriptions shall:
Allow for integration of the Service with supported platforms (such as platforms providing calendar, messaging and other services), as more fully detailed below in section 4;
Allow for the collection and analysis of patterns of usage of the Enterprise Administrator's Workplace by Users;
Allow for the managed scheduling and booking of working spaces; and
Such other service modules as may be selected in an accepted Subscription Form.
1.3. The Service for Co-working Administrators
The Service may be used by Co-working Administrators for the purposes more particularly described in the Website or on the App from time to time, and the scope for the Services that may be used by Co-working Administrators will depend on the subscription selected by the Co-working Administrator in the accepted Subscription Form. Typically, such subscription shall:
Allow for integration of the Service with supported platforms (such as platforms providing calendar, messaging and other services), as more fully detailed below in section 4;
Enable the booking of and payment for spaces within the Co-working Working Place by Users;
Allow for the collection and analysis of patterns of usage of the Co-working Administrator's Workplace by Users;
Allow for the managed scheduling and booking of rooms, desks and work spaces; and
Such other service modules as may be selected in the accepted Subscription Form.
1.4. The Service for Users
The functionality of the Service will be determined by the Administrator of each Workplace for which such User is registered. Typically, the Service may be used by Users to:
Reserve spaces within those Workplaces, including any meeting rooms, hot desks or other shared spaces;
Where applicable, pay for such usage or register such usage;
Communicate with other Users in a Workplace;
Reserve a presence in a Workplace for other Users and authorized non-user individuals permitted to enter the Workplace ("Guests");
Locate other Users in a Workplace who are using the App; and
Such other functionality as may have been subscribed for and enabled by the Administrator of that Workplace.
1.5. Data collected through the Service
Effectively scheduling meetings and managing the calendars of Users;
Effectively managing shared spaces within a Workplace;
Analyzing usage of spaces within the Workplace;
Identifying whether Users are in the Workplace, and which Users are in the Workplace; and
Allowing for communication between multiple Users and between Users and Administrators in respect of use of the Workplace
Using aggregated data to create benchmarks and industry reports to support the community.
Administrator will have the ability to set the extent of information that is requested for collection from Users, and Administrators may determine whether or not Users can provide anonymous date through the App. Use of an App by Users cannot be enforced by Nook, and is a matter for Administrator to administer.
2. Subscription to the Service
2.1. Creating an Account
2.2. Trial License
Administrators and Users may use certain specified modules in the Platform on a trial, evaluation basis for the period of time indicated at the time of execution of the Subscription Form. For greater certainty, trials are at the discretion of Nook and Nook reserves the right to cancel or terminate a trial immediately at any time on provision of written notice to You. Nook hereby grants to Administrator and Administrator hereby accepts a non-exclusive, non-transferable, royalty-free, license, during the trial evaluation period, to use the Service for evaluation purposes only, subject to the terms and conditions of this Agreement.
2.3. Commercial License
Subject to submission and acceptance of a Subscription Form and payment of the applicable Fees, Nook hereby grants to Administrator and, to the extent authorized by Administrators, Users a non-exclusive, non-transferable internal license to use and access the Platform and user interface for the purpose of using the Service during the Term. Administrator shall be entitled to use the modules provided in the subscription plan selected and purchased by Administrator. On creation of your account, if you are an Administrator you will be able to create your own login details enabling direct access to Services for multiple levels of access by Administrator's permitted users. Administrator will have the ability to trial, subscribe, suspend and unsubscribe from modules (both paid and free modules depending on Administrator's subscriptions) of the Service. License Restrictions. All software provided is licensed; not sold. You shall use the Services solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Service available to any third party. You shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent expressly agreed upon in writing by Nook or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Services (c) access the Services in order to (i) build a competitive product or Services; or (ii) copy any ideas, features, functions or graphics of the Service.
2.4. Restrictions on Use of the Services
You shall not (a) use, or permit the use of, the Services for an illegal purpose, criminal offence, intellectual property infringement, harassment (including annoying or offensive transmissions), or in a manner that would cause interference with network operations; (b) resell, remarket, transfer or share the Services or receive any charge or other benefit for the use of the Services; attempt to bypass Nook's network, or re-arrange, disconnect, remove, repair or otherwise interfere with any Services or facilities; or (c) remove any proprietary notices, labels, or marks from the Nook Technology or modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available through the Services nor use any of the foregoing except for the specific purpose for which such intellectual property is made available to You.
2.5. Lawful Purposes
You will at any and all times meet Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Service in Your country, including applicable rules that govern the export or import of software and laws relating to collection and use of personal information. You agree to use the Services solely for lawful purposes only. In this respect You may not, without limitation (i) use the Services to manage any illegal operations, (ii) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the technology underlying the Services (including our proprietary software which may be available for download on the Website), (iii) send any unsolicited commercial communication not permitted by applicable law; or (iv) endanger any part of any system or Internet connection of Nook or any third party through your use of the Service.
2.6. Third Party Software
The technology underlying the Service may incorporate and embed software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Nook Technology falls under the scope of this Agreement. Such third party software is licensed; not sold and will be provided to You on the license terms of this Agreement unless additional or separate license terms apply as indicated at the time of account access.
3. Service, Support and Maintenance Terms
3.1. Provision of Service
Conditioned on the terms and conditions of this Agreement and payment of the Fees, Nook shall make the Service available to Administrator and its authorized Users during the term of the Administrator's subscription.
3.2. Service Responsibilities
The Service has built in help features to assist Administrator in troubleshooting and resolving problems encountered while using the Service. Additional support services may be purchased directly from Nook by separate agreement.
Nook shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Administrator Data.
Nook shall use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond Nook'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 Nook employees), or Internet Services provider failures or delays. Nook will provide updates and upgrades to the technology underlying the Website from time to time to provide new features and improvements, bug fixes and error corrections which will be available across the Nook platform.
3.5. Incremental Services
From time to time, additional Nook or third-party functionality (such functionality being deemed not to be part of the Service) may be made available by Nook to Administrator (in the case of third-party functionality, such functionality being made available on a pass-through basis pursuant to terms specified by the third-party provider of such functionality), and which additional functionality may be purchased by Administrator for additional fees in accordance with any additional terms and conditions specified by Nook.
3.6. Service Limitations
The Service is not a back-up service and accordingly Nook will not be responsible for any lost data due to server crashes or other events outside Nook's reasonable control. However, Nook maintains backup of data on its servers to minimize the impact of any server crashes.
4. Links & Third-Party Websites and Integrations
The Website and App may contain links to other websites that are not owned or controlled by Nook or may make it possible for you to incorporate links within the self-assessment documentation or other documentation that you make available through the Service. You may also elect to use third party services with the Service where such third party service providers have integrated with the Service ("Third Party Integration Partners"). In no event shall any reference to any third party, third party product or service be construed as an approval or endorsement by Nook of that third party, third party product or service. Nook is also not responsible for the content of any linked websites or for the delivery of any product or service offered by third parties including Third Party Integration Partners. In order to receive access to a Third Party Integration Partner's products or services, you will need, in most cases, to sign-up directly with the Third Party Integration Partner. For certain services offered by Third Party Integration Partners, you will be required to pay a fee to Nook to turn on the third-party service. Any third-party websites or services (including those offered by Third Party Integration Partners) are subject to the terms and conditions of those websites and or services and You are responsible for determining those terms and conditions and complying with them. The presence of a link to any other website(s) does not imply that Nook endorses or accepts any responsibility for the content or use of such websites, and You hereby release Nook from all liability and/damages that may arise from Your use of such websites or receipt of services from any such websites. While Nook does not prohibit linking to third party websites and content, it does not wish to be linked to or from any third-party web site which contains, posts or transmits any of the content which infringes any third parties rights or any applicable law, or which would otherwise bring Nook into disrepute. Nook reserves the right to prohibit or remove (or require You to remove) any link to the Website, including, without limitation, any link which contains or makes available any content or information of the foregoing nature, at any time.
5. Compliance Documentation
The Service allows for the hosting of agreements, checklists, and other safeguards the Administrator may choose to use for authorizing Users or Guests entry to a workplace ("Compliance Documentation"). Compliance Documentation may include but is not limited to: workplace safety and access requirements (eg. caps on numbers of concurrent workers at a location); non-disclosure agreement templates; and intellectual property agreements. If you are an Administrator, Nook may provide reference materials within the Service as a reference point for Administrator's own Compliance Documentation. Administrator acknowledges and agrees that it is Administrator's obligation to seek independent legal advice on the use of any Compliance Documentation and ensure that such terms accurately reflect Customer's business practices and current legal requirements. Nook makes no representations, warranties or assurances in relation to the contents of any reference Compliance Documentation and their provision by Nook should not be construed as legal advice or as templates which can be relied on without tailoring and customization to Administrator's requirements.
6. Proprietary Rights and Data Terms
6.1. Exclusive Ownership
Except for the rights and licenses granted in this Agreement, You acknowledge and agree that any and all intellectual property rights to or arising from the software and technology used to provide the Website and Service are and shall remain the exclusive property of Nook Technologies, Inc. and its licensors. Nothing in this Agreement is intended to transfer any such IP rights to, or to vest any such intellectual property rights in, You. You are only entitled to the limited use of the intellectual property rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with Nook's intellectual property rights. Any unauthorized use of Nook 's intellectual property rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
6.2. Administrator Data
6.3. Content License
You hereby grant Nook a perpetual, worldwide, royalty-free, and non-exclusive license to access Administrator Data in order to: (i) provide the Services, including storing, hosting and management of such content; and (ii) create Pattern Data. Together Sections 7.3 (i) and (ii) constitute the "Content License"). You understand that Nook , in performing the required technical steps to provide the Services, may (a) transmit or distribute Administrator Data over various public or private networks and in various media; and (b) make such changes to Administrator Data as are necessary to conform and adapt that Administrator Data to the technical requirements of connecting networks, devices, Services or media. You confirm and warrant to Nook that you have all the rights, power and authority necessary to grant the above Content License and that use of the Content in the manner contemplated will not breach the rights of any third party. You further understand that we may share Administrator Data (with any personally identifiable information anonymized) to our third party partners from time to time.
As used herein, the term "Pattern Data" means non-personally identifiable information, data and reports derived from or compiled through the Service, including but not limited to demographics data, mobility patterns, geolocation data and trend data such as aggregated data and statistics indicating frequency of use and popularity of the services. For greater certainty, Pattern Data is data that does not identify a specific Administrator or its end users and is data which does not relate to a specific Administrator's business (including data relating to a specific Administrator's locations that receive the Services).
6.4. Content Responsibilities
Administrator is responsible for any and all content provided hereunder and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Client Data to be made available to Nook for Nook to transmit, host and store. For greater certainty, Administrator shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Administrator Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and notify Nook promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service.
Nook shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Services.
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 the terms and conditions of this Agreement, the Administrator Data, the Software, business and marketing plans, technology and technical information, product designs, and business processes. 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.
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. 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).
7.3. 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.
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 contained in this Agreement, 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. Term and Termination
8.1. Services Period and Renewals
Subscriptions are for periods of time selected at the time you create your account with Nook (such as monthly, quarterly and annual subscriptions). Subscriptions will auto-renew at the end of the then current term unless or until Your subscription is terminated pursuant to Sections 9.2 or 9.3 below ("Term"). You may update your subscription preferences at any time through Your account or by executing a new Subscription Form.
8.2. Termination by Administrator
You may terminate the Service with effect from the end of any current Term by giving not less than 30 days advance written notice. Termination of the Services will not entitle you to a refund of any amounts prepaid for the Services.
8.3. Services Suspension or Termination by Nook
8.4. Effect of Termination
Upon termination of this Agreement, the Services shall terminate and Nook will terminate Your account thirty (30) days after a failure to renew your subscription, if You have closed your account or if this Agreement is terminated for any other reason. Nook will not be liable in respect of any damage caused by the termination of this Agreement or closure of your account.
9. Payment Terms
Services are purchased by Administrators for subscription terms with payment for the specific period being due and payable in advance.
9.2. Payment & Charges
Your access to and use of the Services is subject to Your payment of the applicable fees due for the Services selected by You ("Fees") set out on the Website and all other applicable amounts, charges and taxes indicated to You when You purchase Services (or otherwise notified to You by Nook from time to time) when you use the Service or noted on Your invoice and viewable in Your account profile. Unless otherwise stated on the Invoice, all invoiced amounts are due upon receipt and processed immediately using the credit card on file for You. Receipts for purchased Services will be delivered to You electronically. You shall: (i) keep the billing, credit card and payment information You provide to Nook or its suppliers or payment processors, including name, credit card number and expiry date, mailing address, email address and telephone number, accurate and up to date; otherwise, we may suspend the Services; (ii) promptly advise Nook if Your credit card information changes due to loss, theft, cancellation or otherwise; (iii) be liable for Your failure to pay any Fees billed to You by Nook caused by Your failure to provide Nook with up to date billing information. To offset its additional processing costs, Nook may charge You for administrative charges as set from time to time for administrative or account activities including: collection efforts due to non-payment or having a balance over Your credit limit; returned or rejected payments; or changes in personal identifier information. All administrative charges charged to You will be indicated to You on Your invoice or receipt and You shall pay all such charges.
You are responsible for paying any applicable governmental sales, use, value-added, commodity, harmonized and other taxes imposed on Your purchase or use of the Services. To the extent Nook is required to collect such taxes, the applicable tax will be added to Your billing account.
9.5. Transaction Processing
Nook will cause transactions in respect of Your purchase of Services to be processed, and applicable fees owing by You to be collected. All subscriptions will automatically renew and the relevant fees will be processed and charged to You in full unless You notify Nook at least thirty (30) days in advance of the anniversary of a renewal period that you wish to discontinue the Services. Recurring payments for periodic subscriptions are processed on the account anniversary date for any subscriptions.
9.6. Pre-authorized Payment
By providing a credit card to Nook as part of your account set-up for pre-authorized payments, You authorize Nook to charge Your credit card for all outstanding Fees, taxes and charges and outstanding account balances due under the Agreement, and this constitutes Nook's good and sufficient authority for so doing. If Your pre-authorized payment method fails, Nook will provide notification to you of payment failure. If you fail to rectify the payment failure within 10 days of written notice, Nook may immediately deactivate Your account without notice to You and collect Fees owing using other collection mechanisms. If you have not paid applicable fees within 30 days of the due date, Nook will automatically terminate your account and all Administrator Data from our servers. You are solely responsible for all charges incurred under Your account by You or third-parties.
10. Changes to Software, Services and Agreement
10.1. Updates to Agreement
Nook reserves the right to modify this Agreement at any time by publishing the revised Agreement on the Website and/or providing a copy of this Agreement to your account by email. The revised Agreement shall become effective within ten (10) business days of such publication or provision to You, unless You expressly accept the revised Agreement earlier by clicking on the accept button. Your express acceptance or Your continued use of the Services after expiry of the notice period of ten (10) business days (being weekdays excluding any statutory holidays in Ontario), shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.
10.2. Changes to Nook Technology
Nook may alter, update or upgrade the Nook Technology from time to time. Updates and upgrades to core framework and plug-ins will be processed automatically.
10.3. Changes to Fees and Services
Nook may change the Services, any Services fees, amounts, charges (including one-time charges), and/or other aspect of any of the Services at any time upon reasonable notice to You by posting the change on the Website, sending notice via an email to the email address You provide on registration, a message on Your invoice, in writing, or any other notice method likely to come to Your attention. If You do not accept the change, Your sole recourse is to terminate the Services with effect from the end of the then-current Term. Your continued access to and use of the Services after the change has come into effect constitutes Your acceptance of the change and You acknowledge and agree that (i) You will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) You will continue to be responsible to pay for the Services unless You terminate in accordance with Section 9.2.
11. Liability Provisions
11.1. No Warranties
Nook CANNOT GUARANTEE THAT THE SERVICES WILL ALWAYS BE AVAILABLE, THAT THEY WILL OPERATE WITHOUT FLAW OR THAT THEY WILL NOT CAUSE ANY DATA LOSS. THE SOFTWARE, SERVICE AND ALL NOOK TECHNOLOGY ARE PROVIDED "AS IS" WITH NO WARRANTIES WHATSOEVER; NOOK DOES NOT MAKE ANY EXPRESSED, IMPLIED OR STATUTORY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, INTEGRITY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. NOOK FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR NOOK TECHNOLOGY WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES NOOK WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NOOK CANNOT GUARANTEE THE ACCURACY OF ANY INFORMATION OBTAINED FROM THE SERVICE AND DOES NOT ACCEPT ANY RESPONSIBILITY FOR ANY DECISION MADE BY YOU ON THE BASIS OF ANY INFORMATION OR DATA PROVIDED BY THE SERVICE.
11.2. Limitation of liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER NOOK NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (WHETHER ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR TO ANY SERVICES PROVIDED TO YOU BY NOOK (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS)) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF NOOK (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. IN NO EVENT SHALL NOOK 'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT THE AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT.
THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF NOOK (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO ANY SERVICES PROVIDED TO YOU BY NOOK (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) IN RELATION TO THE SERVICES, EXCEED THE FEES PAID BY YOU TO NOOK FOR THE SERVICES COMPONENT GIVING RISE TO THE CLAIM.
THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER NOOK NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO IMMEDIATELY CEASE USE OF SUCH SERVICES.
12.1. Administrator Indemnity
You agree on demand to indemnify, defend and hold Nook, its affiliates and Nook staff harmless from and against any and all liability and costs, including reasonable attorneys' fees incurred by such parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party (including without limitation the rights of any User, whether in respect of their rights under applicable privacy legislation or otherwise), (c) misuse of the Services, or (d) violation or breach of any law, regulation or guideline.
12.2. Nook Indemnity
Nook shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney's fees incurred by, You in connection with any such claim; provided, that You (a) promptly give Nook written notice of the claim; (b) give Nook sole control of the defense and settlement of the claim; and (c) provide to Nook all reasonable assistance, at Nook ‘s expense.
13. General Terms
13.1. Force Majeure
Except for each party's obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.
13.2. Administrator Services
For assistance with questions regarding this Agreement or the Services, if You have other enquiries, or if You require further assistance regarding use of the Services provided by us, please contact us at firstname.lastname@example.org
Nook may refer to You in Nook 's list of customers and may use Your corporate name and logo for this purpose. For the avoidance of doubt, Nook will not use Your name, logo, any other trademark or trade-name of Yours for any other purposes without Your prior consent.
13.4. Third Party Relationships
Nook or its business partners may present Services offerings, advertisements or promotional materials via the Services. Your dealings with, or participation in promotions of any third-party business partners via the Services are solely between you and such third party and your participation is subject to the terms and conditions associated with that offering, advertisement or promotion. You agree that Nook is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the Services.
13.5. Third-party Services
The Services may present links to third-party Web sites or third-party Services not owned or operated by us. We are not responsible for the availability of these third-party sites or Services or their contents. You agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any content of any such third-party site or Services or goods or Services available through any such third-party site or Services.
13.6. Entire Agreement
The terms and conditions of this Agreement constitute the entire agreement between You and Nook with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
13.7. Severability & Waiver
Should any term or provision hereof be deemed invalid, void or un-enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement. If Nook does not take action against all breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.
You are not allowed to assign this Agreement or any rights hereunder without the prior written consent of Nook, such consent not to be unreasonably withheld. Nook is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.
13.9. Applicable Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of Ontario, Canada without giving effect to any conflict of laws or provisions whether contained in Canadian law or the laws of Your current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the province of Ontario, Canada. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.