(Last modified on June 28, 2024)
1.1 Acceptance
By interacting with the Services in any way, or by clicking or tapping the acceptance button upon signing up for a ScalePad Account, you (the “Subscriber”) hereby accept and agree to be bound by these Terms of Service (the “Terms”) without any reservations, modifications, additions or deletions. If you do not wish to accept all the provisions contained in the Terms, you are not authorized to use the Services. Acceptance of the Terms creates a legal and binding agreement between you and us.
If you are using the Services and accepting and agreeing to these Terms on behalf of a company, partnership, association or other legal entity (a “Legal Entity”), you represent and warrant that you have the authority to bind that Legal Entity to these Terms and, in such event, "you" and "your" will refer and apply to that Legal Entity, as applicable.
1.2. Modifications to the Terms. Subscriber acknowledges that ScalePad may modify these Terms at any time. In the event ScalePad modifies these Terms, ScalePad will use commercially reasonable efforts to notify Subscriber at the email address on file in their ScalePad Account not less than thirty (30) days before the modification(s). Unless Subscriber objects in writing, Subscriber will have been deemed to have accepted the modification(s) on the date the updated Terms come into effect. Continued use of Services will be deemed to be Subscriber’s acceptance of the modified Terms; where the Subscriber has objected in writing but continues to use the Services, the objection shall be considered null and void and the Subscriber deemed to have accepted the modified Terms. In the event Subscriber does not agree to be bound by the updated Terms, Subscriber’s only recourse is to terminate their Account or Subscription, which shall be effectively immediately. In the event of termination by Subscriber under this provision, Subscriber shall not be entitled to any refund of any Fees already paid, prorated or otherwise, except as otherwise provided for in these Terms.
1.3. Additional Agreements. The Terms should be read in conjunction with the Privacy Policy and Data Processing Agreement, as all these documents govern your use of the Services and are incorporated into the Terms. Furthermore, certain Services may have additional terms or requirements that apply (the "Additional Terms"), included but not limited to the ScalePad Infrastructure Protection Terms of Service, the ScalePad Workstation Assurance Terms of Service, and the ScalePad IT Asset Disposal Terms of Service. These additional terms or requirements will be made available to you and will become part of your agreement with us if you subscribe to the relevant Services, and are incorporated by reference into these Terms as applicable.
1.4. Privacy Policy. Our Privacy Policy explains how we treat your personal data and protect your privacy when you use our Services. By using our Services, you agree that ScalePad can use such data in accordance with the Privacy Policy.
In addition to any other definitions that may be found throughout these Terms which will be recognizable as they will be capitalized, bolded and in quotation marks, the following definitions apply:
"Authorized Users" refers to users of the Services who have been granted access to use the Services by a Subscriber.
"Billing Portal" refers to the online portal available through the Websites where you can manage your Subscription(s) to Services.
"Customer" refers to a customer of a Subscriber, who may be interacting with the Services in some way.
"ScalePad" refers to ScalePad Software Inc., the owner and operator of the Services. ScalePad is a federally-incorporated company with its head office in the Province of British Columbia, Canada at the address listed further below in these Terms. Where the present Terms refer to “ScalePad”, they may refer to ScalePad Software Inc. and / or its affiliates or subsidiaries, and their respective shareholders, officers, directors, employees, agents, partners, principals, representatives, successors and assigns (collectively "Representatives"), depending on the context. Any reference to "we", "our", or "us" in these Terms shall also refer to ScalePad.
"ScalePad Account" or simply "Account" refers to the online account that you must create in order to access and use the Services.
"Services" refers to all of the products, software and / or services provided by ScalePad, including but not limited to the following: Backup Radar, Cognition360, ControlMap, Lifecycle Insights, Lifecycle Manager, and Quoter. Services also includes any add-ons or other supplementary services you access or purchase to use with the aforementioned products and services.
"Subscriber" refers to the individual or Legal Entity who has purchased a Subscription to use the Services or is using a free version of a Service. In these Terms, a Services user may also be referred to as "you" or "your". When a Services user has created a ScalePad Account and is logged in, they may be referred to as a "Logged-in User".
"Subscription" refers to the right to access to and use any particular Service that you have purchased by paying the "Subscription Fees".
"User Data" refers to any data or other information in any form (including but not limited to text and images) that Subscriber (or any Authorized Users) loads, uploads, transmits to, or enters into the Services via any means.
"User Output" refers to any output produced by the Services in the form of documents or data that is a result of a Subscriber (or any Authorized Users) inputting User Data to the Services.
"Websites" refers to any websites owned and / or used by ScalePad to provide the Services, including but not limited to https://www.scalepad.com/or any subdomain or sub-page thereof, or any URL where the Services are made available, including but not limited to https://app.scalepad.com.
3. Subscriber Acknowledgements, Obligations Regarding the Services, and Use of the Services
3.1. Prohibitions on Use of the Services. Subscriber and / or Authorized Users shall not: (i) use the Services in any manner that in any way violates these Terms or any other applicable policy posted in the Services by ScalePad, or use the Services for any purposes beyond the scope of these Terms; (ii) misuse the Services in any way, including but limited to accessing them using a method other than the interface and the instructions provided by ScalePad; (iii) take information from the Services to build competitive products or services; (iv) use the Services in any manner to propagate spam, including but not limited to unsolicited advertising or bulk electronic mail or messages, including to link to a spam or phishing website; (v) use the Services in any manner that violates any intellectual property rights of ScalePad or any third party; and (vi) use any Services available on mobile devices in a way that distracts and prevents from obeying traffic or safety laws.
3.2. Applicable Laws. Subscriber and / or Authorized Users shall use the Services in good faith, and in compliance with all applicable local, provincial or state, national, and international laws, including but not limited to applicable export and re-export control laws and regulations, and intellectual property laws. Subscriber and / or Authorized Users shall not do anything or encourage conduct that would constitute a criminal offense or give rise to civil liability, or is any way unlawful, illegal, fraudulent or harmful to any third party.
3.3. Restrictions on Services and User Data. Subscriber and / or Authorized Users shall not, or permit any third parties to, use the Services or upload any User Data in any manner: (i) that would propagate software viruses, trojan horses, worms, or any other malicious or non-malicious computer code; (ii) that contains any malicious or non-malicious computer code, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of the Services, or any software, hardware, or telecommunications equipment in any form whether belonging to ScalePad or a third party; or (iii) that would damage or obtain unauthorized access to any system, data, password or other information (whether personal data or not) of ScalePad, other Services users, or any other third party.
3.4. Other General Restrictions Regarding the Services. In their use of the Services, Subscriber and / or Authorized Users shall not, or permit any third parties to: (i) take any action that imposes or may impose (as determined by ScalePad in its sole discretion) an unreasonable or disproportionately large load on ScalePad’s (or its third party providers’) infrastructures; (ii) interfere or attempt to interfere with the proper functioning of the Services or any activities conducted on or via the Services; (iii) bypass any measures ScalePad may use to prevent or restrict access to the Services or any element thereof; (iv)) use manual or automated software, devices, or other processes to “crawl” or “spider” any page or portion of the Services; (v) harvest or scrape any content from the Services in an unreasonable manner; or (vi) in any way collect information (whether personal information or not) of any third party or in violation of our Privacy Policy, except as permitted by the nature and function of the Services.
3.5 Limitation on Your Subscriptions. Your Subscription(s) and your use of the Services are for your personal use and / or that of your Legal Entity, and the use of your Authorized Users and Customers, as applicable and / or given the nature of the Service. Notwithstanding the foregoing, you represent and warrant that your Customers (as defined in these Terms) do not include other Managed Service Providers ("MSPs"), and you shall not transfer your use of the Services or any portion thereof to any other MSP without the express permission of ScalePad. In the event we discover that you are sharing your Subscriptions with third-party MSPs, which is strictly prohibited and a breach of the Terms, we may cancel your Subscription(s) and ban you from the Services, at our sole discretion.
3.6. Subscriber Accounts and Passwords. Subscriber must create a ScalePad Account to use the Services by providing the information required by ScalePad upon signing up (company, first and last name, email address, and optionally phone number, hereinafter "Account Information"), subject to the restrictions and conditions as outlined elsewhere in these Terms. By submitting Account Information, you represent and warrant that the information is true and accurate to the best of your knowledge. Submitting false or misleading Account Information may result in you being banned from using the Services and termination of your Account, at our sole discretion. Following Account creation, Subscriber shall be solely responsible for keeping all Account Information up to date throughout the life of these Terms. Subscribers will be asked to choose a password and are responsible for creating a password of sufficient strength that cannot easily be discovered by third parties and that meets the requirements as presented upon signing up. Subscriber is responsible for maintaining the confidentiality of their password, and is responsible for all activities that occur under their Account whether by them or any third party. You agree to immediately contact us to notify us of any unauthorized use of your Account or any other breach of security regarding your Account. ScalePad and its Representatives will not be held liable for any losses or damages, direct or indirect, pecuniary or non-pecuniary, resulting from your failure to log out at the end of the session, an unattended logged-in session, or a third party using the Services with your Account Information and accessing your Account through any means, and disclaims any responsibility in this regard.
3.7. Age Requirements. By signing up for an Account, Subscriber affirms that they are at least eighteen (18) years of age or the age of majority in the jurisdiction in which they reside or from which they access the Services if the age of majority in such jurisdiction is greater than eighteen (18) years of age.
3.8. Authorized Users. Depending on the Subscription and Service, a Subscriber may have Authorized Users on their Account. As a Logged-in User, you will be required to enter the email address of your Authorized Users ("Authorized User Information"). By submitting Authorized User Information, you represent and warrant that you have the legal right to submit this information and are authorizing the Authorized User to use your Account. You shall be responsible for any violation of these Terms or any applicable Additional Terms, or any violation of any other posted ScalePad policy regarding the Services, by any of your Authorized Users.
3.9. Communications about the Services. Subscriber acknowledges that in connection with use of the Services, ScalePad may send Service announcements, administrative messages, and other information. Subscriber may opt out of some of those communications by following the procedures described in our Privacy Policy or through the notification settings available in the Services when they are a Logged-in User.
4.1. Subscription Period and Automatic Renewal. Unless otherwise expressly agreed to by ScalePad, all Subscriptions to the Services are valid for 12 months; this annual period shall be referred to in these Terms as a "Subscription Period". Your Subscription automatically renews at the end of every Subscription Period. If you wish to cancel your Subscription and avoid paying the Subscription Fees for the next Subscription Period, you must do so prior to the end of the current Subscription Period, no later than 30 days prior to the end of the Subscription Period by contacting us.
4.2. Termination for Cause. You agree that ScalePad, in its sole discretion, with or without cause, has the right (but not the obligation) to block your IP address, revoke your Account credentials, or otherwise terminate your access to or use of the Services (or any portion thereof), immediately and without notice, if ScalePad believes that you have acted inconsistently with the letter or spirit of the Terms or any other ScalePad legal document or policy. Such action by ScalePad shall effectively terminate these Terms between you and us. If either party fails to comply with any of the material terms and conditions of these Terms (including, in the case of Subscriber, failure to pay any Fees or other amounts payable to ScalePad under these Terms when due), the non-defaulting party may terminate these Terms upon fifteen (15) days’ written notice to the defaulting party specifying any such breach, unless within the period of such notice all breaches specified therein will have been remedied.
4.3. Termination of the Services. ScalePad may, in their sole discretion and at any time, discontinue providing any of the Services, or any part thereof, but only with a minimum of thirty (30) days’ notice. If you are a Subscriber to a particular Service, termination of that Service shall effectively terminate these Terms between you and us as it relates to that particular Service. The Terms shall continue as it relates to any other non-discontinued Service used by you, if any. You agree that ScalePad shall not be liable to you or any third party for any losses or damages, pecuniary or non-pecuniary, resulting from termination of your access to the Services, or from ScalePad’s termination of the Services or any part thereof, or your inability to retrieve any User Data or User Output following termination. In the event of termination of any Services by ScalePad, you may be entitled to a refund of Subscription Fees as described in section 5.7 below.
4.4. Effects of Termination.All provisions of these Terms which by their nature should survive termination of these Terms shall survive termination, including without limitation, intellectual property provisions, disclaimers, indemnity and limitations of liability.
5.1. Payment of Subscription Fees. The amount of the Subscription Fees for each level available for a particular Service are displayed to you on the Websites and in the Services prior to your purchase of a Subscription for the first time. The Subscription Fees may vary depending on the "Subscription Tier" chosen through the Services. The Subscription Fees are firm. By signing up for a Subscription Tier you agree to pay the Subscription Fees presented to you upon signing up, plus any applicable taxes. You will be charged the Subscription Fees on the day you agree to pay for your Subscription (the "Initial Billing Date"). Depending on your Subscription, the Subscription Fees shall subsequently be charged on the monthly or annual anniversary of the Initial Billing Date (the "Billing Date"), unless otherwise agreed to between you and us. If your Subscription has annual payments, you may be said to have “Annual Billing” in these Terms.
5.2. Subscription Limits. The Subscription Fees are based on the pricing displayed in the Billing Portal for your Account. Certain Services may have Subscription Fees that are determined based on a maximum number of assets, active clients, licenses, or other limiting factors (the “Limiting Factors”) that are tied to your Subscription Tier (the “Subscription Limit”). If the number of Limiting Factors in your Account increases above your Subscription Limit, ScalePad will notify you and your Account will move to the appropriate Subscription Tier at the corresponding price. At your next Billing Date, you will be billed the price for your new Subscription Tier. If within the applicable grace period the number of Limiting Factors in your Account returns to within your previous Subscription Limit, your previous pricing will be maintained. Notwithstanding the foregoing, certain of the Services will require you to manually change your Subscription Tier to continue to use the Services if the Limiting Factors go above the Subscription Limit; we will inform you if this is the case and the information will be available through the Billing Portal, where you can update your Subscription Tier if you choose to do so.
5.3. Additional Fees. In addition to your Subscription(s), certain Services may either require additional fees for certain services (such as an activation fee), or allow you to purchase certain add-ons or other supplementary services ("Add-ons"). Fees for these services may be referred to in these Terms as "Additional Fees", and Subscription Fees and / or Additional Fees may be referred to as simply "Fees". The Additional Fees are firm. By signing up for a Subscription Tier that includes required Additional Fees, or selecting optional add-ons or services that require Additional Fees, you agree to pay the Additional Fees presented to you, plus any applicable taxes.
5.4. Currency; Taxes, Levies and Duties. All Fees are charged in United States Dollars, which may be converted to other currencies upon payment depending on your location and / or credit card agreement. ScalePad is not responsible for any currency conversion fees or foreign exchange differences charged to the Subscriber. All Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. Accounts registered with a Canadian billing address will additionally be billed federal and provincial sales taxes according to the province specified for the Account’s billing address.
5.5. Billing Information and Failure to Make a Payment. Subscriber shall be required to enter the following "Billing Information" in order to pay the Fees through the Services: credit card number, credit card expiry date, card security code (CVV/CVC), and billing address. Subscriber shall be responsible for keeping their Billing Information up to date through the Billing Portal. In the event payment is not received for your Subscription Fees on a Billing Date due to a declined attempt to charge your credit card, expired credit card, or otherwise, and payment is not received within 7 days of the initial attempt, your Account may be suspended. If a suspended Account is not reactivated and the outstanding Account balance paid in full within 30 days, ScalePad reserves the right to permanently delete your User Data and send your unpaid account to a collection agency.
5.6. Payment Processing. All payments of Fees made through the Services are made using a secure https:// connection, and payment processing is handled through the “Third-Party Payment Processor” (currently Stripe though subject to change without notice). The Third-Party Payment Processor currently accepts only certain credit cards as payment options (subject to change without notice. Once transactions are accepted by the Third-Party Payment Processor, they are processed in accordance with their program rules and procedures and Terms of Use. ScalePad and the Third-Party Payment Processor are unaffiliated companies and ScalePad has no influence on the operations of the Third-Party Payment Processor. ScalePad and / or its Representatives shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise, resulting from any error or failure on the part of the Third-Party Payment Processor. All Billing Information is collected and stored by the Third-Party Payment Processor on their own secured servers. ScalePad does not have access to any credit card information, nor can it be responsible for any breach of information caused by faulty programming or malicious users on the servers of the Third-Party Payment Processor. Non-financial information will, however, be available to ScalePad for invoice-making and record-keeping purposes.
5.7. Refunds. Except as otherwise provided for in these Terms, ScalePad does not provide full or partial refunds of any Fees for any reason whatsoever (including but not limited to if you have canceled your Subscription), except for administrative errors or where an authorized representative of ScalePad has expressly offered a refund. You shall be entitled to a prorated refund of Subscription Fees already paid for a particular Service if: (a) you have Annual Billing; and (i) you have canceled the Service based on a change that has materially reduced the functionality of the Service; (ii) you have canceled the Service further to ScalePad modifying these Terms resulting in a reduction of your rights; or (iii) ScalePad ceases providing the Service at its sole discretion. All billed amounts will be deemed correct and payable, other than any billing errors identified and communicated to ScalePad within ninety (90) days of the Billing Date.
5.8. Coupon Codes. If you have a valid coupon code when creating an Account, you may be entitled to a discount on your Fees, which shall be applied when you are charged. In the event that an discount is erroneously applied, ScalePad reserves the right to refuse or cancel Subscriptions or Add-ons to which an erroneous discount has been applied.
5.9. Pricing Updates. ScalePad reserves the right to change the pricing of Subscription Fees from time to time. You will be informed of the new price prior to the change. Any new rates will be applicable at the beginning of the next Subscription Period. Your only remedy if you refuse a price change is to cancel your Subscription. For clarity, the modifications in your Subscription Fees as a result of the factors described in section 5.2 above do not constitute a change in price under this section 5.9.
6.1. Security Standards. ScalePad implements, maintains and continuously improves security measures and standards in providing the Services, as described in this section. ScalePad responds to and deals with security incidents involving your data in accordance with applicable laws. In the event there is a security incident involving your data, ScalePad shall notify you within 48 hours of the incident, or within the time period required by any Applicable Privacy Law, as explained in our Privacy Policy.
6.2. Services Availability and Interruptions. ScalePad makes reasonable efforts to ensure the Services will be available 24 hours per day, 7 days per week. However, there will be occasional periods of downtime necessary to perform essential system upgrades, modifications and / or maintenance to the Services. We will provide a reasonable notice for scheduled downtime, but in some cases, downtime may be unscheduled or beyond our control. There may also be unforeseen incidents that cause the Services to go down for a period of time that are beyond ScalePad’s control. While we will endeavour to make any Services unavailability or interruption as brief as possible, ScalePad shall not be held liable for any losses or damages, pecuniary or non-pecuniary, resulting from the interruption of the normal functioning of the Services, and disclaims any responsibility thereto.
6.3. Modifications and Updates to the Services. ScalePad will provide the Services as described at the start of your Subscription Term and including standard updates to the Services that are made generally available by us during the term of your Subscription. You are required to accept all patches, bug fixes and updates made by or on behalf of ScalePad to the Services. ScalePad may choose to change and improve the Services. We may add or remove functionalities or features, provided that such modifications do not materially decrease the functionality provided by the Services. If such modifications do materially affect the functionality provided by the Services and you do not wish to continue using our Services, your sole recourse is to terminate these Terms upon thirty (30) days’ notice. If you cancel a Subscription based upon a material change to the Services, you may be entitled to a refund, at our sole discretion.
When you use Quoter, you acknowledge and agree that:
(i) ScalePad may be sending payment processor transaction requests to your assigned payment gateways. We are unable to guarantee the availability of your payment gateway or merchant provider and are in no way responsible for any outages.
(ii) Quoter is not a payment processor or payment gateway service and does not process any payments on your behalf. ScalePad is in no way responsible for any failure or damages you may experience from use of your payment gateway services. ScalePad is also not responsible for payment of any amounts due to you related to any transactions processed through your payment gateway.
(iii) ScalePad never stores any credit card information on behalf of Subscribers or Customers using Quoter. Your payment gateways have the sole and complete responsibility for the storage of credit card and payment information for your Customers.
(iv) Quoter’s digital signature capability (e.g. for Purchase Orders) may not be legally binding, depending on the laws within your jurisdiction. ScalePad does not warrant or guarantee that digital signatures accepted through Quoter will be legally enforceable should a dispute occur.
8.1. Definitions. For the purpose of these Terms, “Computer Code” includes but is not limited to source code in any programming language, object code, frameworks, CSS, PHP, JavaScript or similar files, templates, modules, or any similar files, and related documentation; and “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, whether registered or not.
8.2. ScalePad Ownership. You acknowledge that: (i) the Services contain proprietary and confidential information that are protected by applicable intellectual property and other laws; and (ii) ScalePad and/or third parties (via license) own all right, title and interest in and to the Services (including all of their constituent elements, including but not limited to Computer Code) and content that may be presented or accessed through the Services (except for User Data and User Output as defined below), including without limitation all Intellectual Property Rights therein and thereto. All rights not specifically licensed or granted to you under these Terms are reserved to ScalePad and its licensors.
8.3. Prohibitions. You agree that you will not, and will not allow any third party, to (i) copy, reproduce, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive Computer Code from the Services or Websites, or any content, arrangement or layout of the Services or Websites for any purpose, unless otherwise permitted by these Terms or the functionalities of the Services; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in the Services; or (iii) copy, use, remove, obscure, or alter ScalePad’s or any third party’s copyright notices, trademarks, or other legal notices or proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Services or on the Websites.
8.4. Feedback. If you choose to communicate to ScalePad (via any means) suggestions for improvements to the Services or any idea or proposal related to ScalePad or its businesses or properties (collectively, “Feedback”), ScalePad shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to ScalePad and waive in favor of ScalePad, its successors and assigns all your moral rights in the Feedback; and agree to provide ScalePad such assistance as ScalePad may require to document, perfect, and maintain ScalePad’s rights to the Feedback. You acknowledge and agree that, by providing any Feedback to ScalePad, you are not entitled to any compensation or reimbursement of any kind from ScalePad under any circumstances.
9.1. Acknowledgements Regarding User Data.Subscriber and / or Authorized Users shall only upload, submit, store, send or receive User Data that: (i) is in compliance with these Terms and all applicable law; (ii) they have the necessary rights to upload or insert into the Services and to permit or allow ScalePad to process; (iii) does not violate any intellectual property right or other proprietary right of a third party; (iv) does not fall within the definition of protected health information under applicable data protection laws, unless ScalePad has agreed otherwise in a Business Associate Agreement with you; and (v) is your own original works, or works for which you have been granted a valid license to reproduce and use.
9.2. Restrictions on User Data. You will not upload, submit, store, create, send, receive or otherwise make available any User Data that: (i) is unlawful, such as User Data that is threatening, abusive, harassing, defamatory, libelous, fraudulent, invasive of another’s privacy, or otherwise tortious or illegal; (ii) is racist, sexist, discriminatory, or otherwise abusive or offensive to any minority, community, organization or other group of people; or (iii) is misleading, including in a manner intended to trade on the name or reputation of others.
9.3. Ownership and License to User Data and User Output.Subscriber retains all of their ownership rights (including Intellectual Property Rights) in their User Data and User Output. By submitting User Data to ScalePad, Subscriber grants ScalePad a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, edit, translate, store, record, reproduce, distribute, transmit, maintain, and / or display, and otherwise fully exploit the User Data and User Output: (i) in connection with ScalePad providing the Services to Subscriber; (ii) to display your profile name, profile photo, and actions you take on ScalePad, the Services or on third-party applications connected to your ScalePad Account, if you have a ScalePad Account; (iii) to analyze your User Data and User Output to provide various product or Services features, such as enhanced reports, warranty date information or even product photos, which analysis may occur at any time; and (iv) to verify service levels in order to offer Subscriber additional Services; and (v) for ScalePad’s internal business purposes, but only if the User Data and User Output have been anonymized and/or aggregated.
10.1. Limited Warranty. ScalePad represents and warrants that the Services will: (a) conform to all material operational features as described when the Subscriber signed up for the Service; and (b) have been tested using commercially available virus detection methodology and based upon such testing , do not, as and when made available, contain any viruses, worms, trojan horses, web bugs, time bombs, “spyware,” or other harmful, malicious or invasive code or components (the “Limited Warranty”), provided that you promptly notify ScalePad in writing of any such non-conformity or defect. Subscriber’s sole and exclusive remedy for breach of the Limited Warranty will be, at ScalePad’s option, the correction of non-conforming or defective Services at ScalePad’s expense or a pro-rated refund of the Subscription Fees paid for the non-conforming or defective Services from the date that ScalePad was notified of such non-conformity or defect.
10.2. Disclaimer of Warranties. You expressly understand and agree that your use of the Services is at your sole risk. The Services are provided on an "as is" and "as available" basis, and you will be solely responsible for any damage to your computer system or loss of data that results from the download, stream or access of any material obtained through the use of the Services or any other functionalities of the Services, or losses or damages (financial or otherwise) resulting from your use of the Services, or any activity arising from the use of the Services. Except for the Limited Warranty described hereinabove, ScalePad expressly disclaims all warranties of any kind, whether express or implied, including but not limited to: warranties of title and non-infringement; warranties that the Services, the information thereon or any materials downloaded therefrom, and any third-party materials will be uninterrupted, error-free, accurate, reliable and free from virus and other harmful components; and the implied warranties of merchantability and fitness for a particular purpose. ScalePad, its affiliates and their respective Representatives, do not warrant that: (i) the Services will be secure or available at any particular time or location; (ii) any defects or errors or omissions will be corrected; (iii) any content (whether provided by ScalePad or third parties) available on or through the Services are free of viruses or other harmful components; (iv) functionalities of the Services will work equally in desktop and handheld or tablet device environments; or (v) the results of using the Services or any activity arising therefrom will meet your requirements, whether business needs or otherwise. To the extent that the law does not permit a disclaimer of warranties, all content accessible on the Services and all operations on this Services are warranted only to the minimum amount legally required.
10.3. Disclaimer for Third-Party Content and Technology. Some of the content displayed on the Services may include content (including but not limited to User Data or User Output) or other elements that belong to or are provided by third parties, including other Logged-in Users. You acknowledge and agree that ScalePad assumes no responsibility for such content. This content is the sole responsibility of the user or entity that makes it available. Furthermore, ScalePad does not and cannot control the flow of data to or from ScalePad’s Services and Websites and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. ScalePad disclaims any and all liability resulting from or related to the performance or non-performance of internet services, software, related systems or systems provided or controlled by third parties (including Subscriber or any Authorized Users) which are not ScalePad’s subcontractors. Without limiting the generality of the foregoing, ScalePad is not responsible for any third-party (including Subscriber or any Authorized Users) software or systems used by Subscriber or any Authorized Users in order to access and use the Services, or any failure thereof.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SCALEPAD AND ITS REPRESENTATIVES AND SCALEPAD’S SUPPLIERS AND DISTRIBUTORS WILL NOT BE RESPONSIBLE TO YOU OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO YOUR CUSTOMERS), WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, TORT, NEGLIGENCE, OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF BUSINESS, LOSS OF USE OF ANY EQUIPMENT, LOSS OF DATA COST OF CAPITAL, COST OF SUBSTITUTED FACILITIES OR SERVICE DOWN TIME COSTS OR ANY OTHER FORM OF ECONOMIC LOSS ARISING IN WHOLE OR IN PART FROM YOUR USE OR ACCESS TO ANY OF THE SERVICES, NO MATTER HOW SUCH LOSSES OR DAMAGES OCCURRED AND NOT WITHSTANDING ANY WARNING OF SUCH POTENTIAL LOSSES GIVEN BY YOU. IN ALL CASES, SCALEPAD, AND ITS REPRESENTATIVES, AND ITS SUPPLIERS AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY TO THESE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS UNDER THESE TERMS AND ANY OTHER AGREEMENT BETWEEN THE PARTIES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT OF FEES SUBSCRIBER ACTUALLY PAID TO USE THE AFFECTED SERVICE DURING THE ONE YEAR PERIOD PRECEDING THE DATE UPON WHICH THE CIRCUMSTANCES GIVING RISE TO THE CLAIM FIRST OCCURRED.
13.1. By ScalePad. ScalePad will defend, indemnify and hold you, your employees, officers, directors, affiliates, agents, contractors, successors, and assigns harmless against any and all losses (including damages, recoveries, deficiencies, interest, penalties and legal fees) arising out of a third-party claim made against you: (a) arising out of our breach of any of our obligations, representations or warranties under these Terms; or (b) that your or use of the Services infringes on any Intellectual Property Right of a third party; provided that ScalePad is notified in writing of such claim promptly after such claim is made upon you. ScalePad will have no liability or obligation if such claim arises from: (a) any alteration or modification to the Services by you or a third party not authorized by ScalePad; (b) any combination of the Services by you with systems, software or technology not furnished by ScalePad; or (c) any use by you of the Services that is prohibited by these Terms or otherwise outside the scope of use for which the Services are intended.
13.2. Option for Infringement Claims. Without limiting ScalePad’s obligations under Section 13.1, if Subscriber or an Authorized User is enjoined from using the Services, or if ScalePad believes that the Services may become the subject of a claim of intellectual property infringement, ScalePad, at its option and expense, may: (a) procure the right for Subscriber to continue to use the Services during the period of their Subscription; (b) replace or modify the Services so as to make it non-infringing; provided, however, that the Services continue to materially conform to their current specifications; or (c) terminate these Terms, in which case ScalePad will refund to Subscriber any Fees paid by Subscriber for those Services not yet delivered. This Section 13.2 and the preceding Section 13.1 set forth the sole liability of ScalePad to Subscriber, and Subscriber’s sole and exclusive remedy, for any infringement by the Services of any Intellectual Property Right of any third party.
13.3. By Subscriber. Subscriber will defend, indemnify and hold harmless ScalePad and its Representatives against any and all losses (including damages, recoveries, deficiencies, interest, penalties and legal fees) from third party claims directly or indirectly arising from or in connection with: (a) ScalePad’s use of your User Data or User Output pursuant to these Terms or in connection with providing the Services; (b) your breach of any of your obligations, representations or warranties under these Terms; or (c) use of the Services (or any part thereof) by you in combination with any third party software, application or service not provided by ScalePad.
These Terms and your use of the Services shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws applicable therein in force at the time without regard to conflict of law provisions. You agree that any legal action or proceeding between you and ScalePad shall be commenced or brought exclusively in the provincial or federal courts located in Vancouver, British Columbia, Canada (a "British Columbia Court”), and you consent and attorn to the jurisdiction of those courts.
Notwithstanding the foregoing, ScalePad shall have the right to bring action against you in courts of competent jurisdiction in the jurisdiction in which you reside or are situated: (i) to seek injunctive relief against you; (ii) to obtain a judgment against you in cased in which a judgment by a British Columbia Court will, or may not be, enforced by a court in the jurisdiction in which you reside or are situated; or (iii) to enforce in the jurisdiction in which you reside or are situated a judgment obtained against you in a British Columbia court.
YOU HEREBY WAIVE ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION FOR ANY MATTER, DISPUTE, PROCEEDING OR ACTION ARISING OUT OF, OR RELATED TO, THESE TERMS OR YOUR USE OF THE SERVICES.
Notices sent to either party will be effective upon receipt when delivered 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 in writing (including by email) and sent to:
ScalePad may change its contact information by posting the new contact information on the Websites or by giving notice thereof to Subscriber.
If sending notices to Subscriber, ScalePad shall send the notice to the latest email address that ScalePad has on file with respect to Subscriber. Subscriber is solely responsible for updating its contact information on file with ScalePad to be current at all times during the term of these Terms.
You may use the contact information above to inquire about anything in these Terms. If you have any questions regarding the Services themselves, please contact us using our website contact form or the Technical Support Form.
16.1 Entire Agreement. The Terms, including the Privacy Policy, Data Processing Agreement and Additional Terms (as applicable), constitute the entire agreement between you and ScalePad with respect to your use of the Services, superseding any prior agreements, correspondence and discussions between you and ScalePad and its Representatives.
16.2 Conflict. In the event of a conflict between these Terms and any applicable Additional Terms, the Additional Terms will prevail to the extent required to resolve that conflict.
16.3 Relationship of the Parties. These Terms govern the relationship between ScalePad and you. They do not create any third -party beneficiary rights, except as otherwise expressly provided for in these Terms. Nothing contained in these Terms will be deemed or construed as creating a joint venture, partnership, agency, employment, or fiduciary relationship between the parties. Neither party, nor either party’s agents, have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.
16.4 Force Majeure. ScalePad shall not be liable for any failure to perform its obligations under the present Terms where such failure results from any cause beyond ScalePad’s reasonable control, including, but not limited to, mechanical, electronic or communications failure or degradation, or any force majeure event.
16.5 Severability. If any provision of the Terms, Privacy Policy, Data Processing Agreement or Additional Terms (as applicable) is found by a court of competent jurisdiction to be invalid, you and ScalePad nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms Privacy Policy, Data Processing Agreement or Additional Terms (as applicable), as the case may be, shall remain in full force and effect.
16.6 Waiver of Rights. The failure or delay of ScalePad to exercise or enforce any right or provision of these Terms, or to take action against you for your failure to comply with these Terms, does not constitute a waiver of such rights, which will still be available to ScalePad in the future.
16.7 Headings.The section titles in the Terms, Privacy Policy, Data Processing Agreement and Additional Terms (as applicable) are for convenience only and have no legal or contractual effect.
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