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Company Agreement

cosmetic company-saas agreement

 

 

 

 Software Service

 Support Services

 Service Levels

 Data Protection

 Data Privacy

 Data Breach

 Confidentiality

 Publicity

 Subscription Fees

 Restricted Uses

 Export Compliance

 Intellectual Property

 Insurance

 Termination

 Effect of Termination

 Indemnification

 Limitation on Liability

 General Provisions

 Entire Agreement

 Amendment

 Assignment

 Notices

 Governing Law

 Severability

THIS SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) IS BY AND BETWEEN Mirrabel Inc, AN ONTARIO CORPORATION Tejo.ca (“Mirrabel Inc”), AND YOU (THE “SUBSCRIBER”). THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE OF ELECTRONIC ACCEPTANCE BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING A SALES QUOTATION THAT REFERENCES THIS AGREEMENT (“EFFECTIVE DATE”). ANY REFERENCE TO SHALL ALSO INCLUDE Mirrabel Inc’ AFFILIATES, AS DEFINED BELOW. EACH OF Mirrabel Inc AND SUBSCRIBER IS A “PARTY” AND TOGETHER THEY ARE THE “PARTIES”.

 

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, INCLUDING A PARTNERSHIP, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

  1. License Grant.

    1. License to Use Service. Mirrabel Inc hereby grants to Subscriber a nonexclusive, nontransferable, worldwide license during the Term (the “License”) to Use tejo.ca’s product recommendation service and makeup and skin care visualization tools (the "Services") in accordance with this Agreement. All rights not expressly granted to Subscriber under the License are reserved by Mirrabel Inc. The License granted to Subscriber pursuant to this Agreement will permit use of the Services by you.

    2. Unauthorized accounts. Any unauthorized access to Services, or other abuse or impermissible activity on Mirrabel Inc’ Site or in connection with Mirrabel Inc’ Services may result in immediate suspension or termination of End-user accounts pursuant to Section 7 of this Agreement. Subscriber will promptly notify Mirrabel Inc of any unauthorized use of the Services in breach of this Agreement, any unauthorized use of accounts, or any other known or suspected breach of security.

    3. Limitations on Use. The Services are for use only by Subscriber and its assigned End-users. Except as permitted by this Agreement, the Services may not be decompiled, reverse engineered, disassembled, transferred, distributed, resold, sublicensed, or used to create any derivative works. Subscribers may not use any network monitoring or discovery software to determine the Site’s or Service’s architecture, or extract information about usage or individual identities of users. Subscriber may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Site or Services. Subscriber may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any non-End-user third party the Services in any way; (ii) modify or make derivative works based upon the Site or Services; (iii) develop applications for internal use or install additional applications that are designed to run on or be used in conjunction with the Services.

 

  1. Limited Grant of Subscriber’s Intellectual Property Rights

    1. Copyright. For the duration of the agreement (plus the grace period described in paragraph 6), the Subscriber grants Mirrabel Inc permission to use the Subscriber’s copyrighted works, including but not limited to branding images, product images, product descriptions, and data or metadata relating the the Subscriber or its products.

    2. Trademarks and Branding. For the duration of the agreement (plus the grace period described in paragraph 6), the Subscriber grants Mirrabel permission to make reasonable use of any of its trademarks or other branding-related intellectual property in the course of providing the Services.

    3. Records and Private Research. Mirrabel Inc is permitted to make copies of any intellectual property that it is permitted to use under paragraphs 1-2, and to keep those copies permanently for the purposes of its records and for any private research. Mirrabel Inc is also permitted to keep any information generated in connection with the Subscriber’s use of the Services.

    4. Marketing. Mirrabel Inc has the Subscriber’s permission to display and copy copyrighted assets described in Paragraph 1 for the purposes of marketing the Services to other parties. Mirrabel Inc shall not, for such marketing purposes, use the copyrighted assets in a way that would constitute a “use” of the Subscriber’s trademarks under s. 19 of Canada’s Trademarks Act, R.S.C., 1985, c. T-13.

    5. Warranty and Indemnity. The Subscriber warrants that they have the right to grant the permissions in paragraphs 1-4, and indemnifies Mirrabel Inc against any damages to outside parties in respect of the intellectual property permissions that it grants under those paragraphs.

    6. Grace Period After Termination. The permissions granted in paragraphs 1, 2, and 4 shall continue for 30 days after the earlier of: (i) notice of termination described in section 7 and (ii) the time that this agreement is terminated for any other reason.

  2. Service Details.

    1. Site Access. Mirrabel Inc shall provide access, via user-accounts, to a dashboard to paid account owners. Mirrabel Inc shall provide access to the product recommendation services to account owner’s end users.

    2. Technical Measures. Mirrabel Inc may implement reasonable technical measures to enforce the End-Users' compliance with this Agreement, including captchas, password policies. Mirrabel Inc shall make reasonable efforts to ensure that these measures do not interfere with the end-users' site access rights.

  3. Fees and Payment.

    1. Billing Period. The Subscriber's "Billing Period" is defined by the plan that they choose on checkout.

    2. Current Billing Formula. The "Current Billing Formula" for a Subscriber's Billing Period is the formula, based on the number of users per month, described at tejo.ca/pricing (the "Subscription Rates Page") at the commencement of the Billing Period, or the rate otherwise agreed to. After the Subscriber's Billing Period commences, any subsequent changes to the Subscription Rates Page will not affect that Billing Period's Current Billing Formula.

    3. Overage Fees. Mirrabel Inc may invoice the Subscriber, at intervals of Mirrabel Inc’s choosing, for any accumulated overage fees assessed under any applicable Billing Formula.

    4. Suspension for Exceeding Overage Limit. Mirrabel shall immediately suspend Services to the Subscriber if the Subscriber’s total accumulated overage fees exceed the overage limit agreed to by the parties, and reinstate Services within 24 hours of receipt of payment of all outstanding overage fees.

    5. Change of Overage Limit. Mirrabel Inc may unilaterally accept any request to increase the overage limit, including requests sent to customerservice@tejo.ca. If Mirrabel Inc accepts the requested increase, it shall immediately reinstate suspended services, if applicable.

    6. Payment of Subscription Fees. Payment of Subscription Fees shall be made at the beginning of each Billing Period in the amount determined by period's Current Billing Formula plus Overage Fees Your credit card/debit card will automatically be charged this amount and a receipt will be e-mailed to you.

    7. Taxes and Duties. Mirrabel Inc’ fees are exclusive of all HST, GST, VAT or sales tax imposed by taxing authorities, and Subscriber will be responsible for payment of all such taxes.

    8. Payment and Billing Information. Subscriber agrees to provide Mirrabel Inc complete and accurate billing and contact information at all times. This information includes Subscriber’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. All fees are payable in Canadian dollars. Mirrabel Inc reserves the right to determine acceptable methods of payment for the use of its Services. If Subscriber believes any bill is incorrect, Subscriber must contact Mirrabel Inc in writing in accordance with Section 11.7 within 90 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Subscriber will pay the undisputed portion of the invoice, and Subscriber and Mirrabel Inc will cooperate to promptly resolve the invoice dispute.

  4. Amendments. The Parties agree that Mirrabel Inc may, from time to time, in its reasonable discretion, make changes to the Services.

  5. Mirrabel Inc Proprietary Information. The Site, Services, and its Contents (“Mirrabel Inc IP”) are owned or licensed by Mirrabel Inc and protected by Canadian and international copyright, trademark, service mark, patent and/or other proprietary rights and laws. Except as expressly provided in this Agreement, nothing contained herein shall be construed as conferring to Subscriber any license or right under copyright or other intellectual property right law. No part of the Mirrabel Inc IP may be altered, copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, except as specifically provided in this Agreement. Subscriber shall not take any action that shall interfere with or diminish Mirrabel Inc’s right in any of the Mirrabel Inc IP. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

  6. Term, Suspension, and Termination.

    1. Term. Unless terminated earlier pursuant to this Section 7 of the Agreement, the initial term (“Initial Term”) of this Agreement shall, by agreement between the parties, be either (i) one month from the Effective Date, and shall thereafter automatically continue under this agreement in subsequent periods of one month or (ii) twelve months from the Effective Date, and shall thereafter automatically continue under this agreement in subsequent periods of twelve months, unless either Party provides a thirty-day (30) written notice of termination prior to the end of the current term. The Initial Term and Subsequent Term shall together be known as the “Term”.

    2. Suspension with Right to Cure. In addition to any other rights and remedies outlined in this Agreement, Mirrabel Inc reserves the right to suspend the License and Subscriber’s access to the Services upon ten (10) days’ written notice to Subscriber (“Cure Period”) if Subscriber’s account becomes delinquent by non-payment for more than fifteen (15) days and such delinquency is not cured within the Cure Period. Delinquent invoices are subject to interest of one percent (1.0%) per month on any outstanding balance, plus all expenses of collection. Subscriber will continue to be charged for the remainder of the term for any delinquent accounts or for breach of this Agreement.

    3. Termination by Either Party for Any Reason. Either Party may terminate this Agreement at any time upon twenty (20) business days’ prior written notice for any reason (“Termination for Convenience”). If Subscriber terminates this Agreement pursuant to this Section, Subscriber is not entitled to any refund of Subscriber Fees. If Mirrabel Inc terminates this Agreement pursuant to this Section, Subscriber shall receive a refund equivalent to any unused portion of the prepaid Term. Any unauthorized access, use of passwords or Services, or other abuse or impermissible activity on Mirrabel Inc’ Site or in connection with Mirrabel Inc’ Services may result in immediate suspension or termination of End-user accounts with no refund and without limitation of any other available legal remedies.

    4. Remedies Not Limiting. The remedies provided in this Section are in no way limiting of one another or of any other rights and remedies granted to Mirrabel Inc under this Agreement. Mirrabel Inc may choose to, but is not required to, place Subscriber’s account on suspension in lieu of termination where termination is permitted under the terms of this Agreement or take other appropriate action.

    5. Survival. Sections 7.4 (Remedies Not Limiting), 8 (Representations and Warranties), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), and 11 (Additional Miscellaneous Provisions), and this “Survival” provision, shall survive termination of this Agreement regardless of the manner in which this Agreement was terminated.

  7. Representations and Warranties. Each Party represents, warrants, and covenants, as applicable, to the other Party that: (i) It has all right, title, and authority to enter into this Agreement; and (ii) Its execution of this Agreement and its engagement hereunder do not constitute a breach of any contract, agreement or understanding, oral or written, to which it is a party or by which it is bound.

  8. Disclaimer of Warranties. The Site and Services are provided on an “as is” and “as available” basis, and, unless otherwise stated in this Agreement, Mirrabel Inc expressly disclaims all warranties, including the warranties of merchantability, and fitness for a particular purpose and non-infringement. Mirrabel Inc disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to (a) any errors in or omissions from this Site and Services; (b) the unavailability of this Site, Services, or any portion thereof; (c) Subscriber’s use of this Site or Services; (d) Subscriber’s use of any equipment or software in connection with the Site or Services; or (e) any third party web sites or content therein directly or indirectly accessed through links contained on the Site or through the Services.

  9. Limitation of Liability.

    1. THE LIABILITY OF Mirrabel Inc AND SUBSCRIBER TO EACH OTHER FOR ANY AND ALL CAUSE(S) OF ACTION, REGARDLESS OF THE FORM OF ACTION (INCLUDING CONTRACT, TORT, NEGLIGENCE OR ANY OTHER), ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR BREACH OF THIS AGREEMENT WILL IN NO EVENT EXCEED THE AVERAGE ANNUAL SUBSCRIPTION FEES IN THE THEN-CURRENT TERM.

    2. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR DAMAGES FROM LOST PROFITS, LOST USE, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THIS SITE OR SERVICES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  10. Additional Miscellaneous Provisions.

    1. Jurisdiction. This Agreement shall be construed in accordance with, and governed by, the laws of the Province of Ontario, except for that body of law addressing conflicts of law.

    2. Assignments. This Agreement shall be binding upon and shall be for the benefit of Mirrabel Inc and Subscriber and both Parties’ respective legal representatives, successors, and permitted assigns; provided, that Subscriber shall not be entitled to assign, sub-license, or delegate this Agreement, in whole or in part, without Mirrabel Inc’ prior written consent. Any attempted assignment, delegation, or assumption of this Agreement not in accordance with this Section will be of no force or effect.

    3. Entire Agreement; Waiver; Relationship of the Parties. This Agreement and the Exhibits hereto constitute the entire agreement between the Parties as to the subject matter hereof, and supersede all prior and/or contemporaneous agreements, representations, and understandings between them, whether orally or in writing, except as may be expressly incorporated by reference into this Agreement. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Parties. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agency, or employment relationship between the Parties, and neither Party shall have any right to bind the other or incur any obligation on the other’s behalf without the other’s prior written consent. Except as expressly provided for herein, this Agreement is not for the benefit of any third party, but nothing in this Agreement shall prevent or interfere with any consumer bringing an action against Subscriber for violation of law.

    4. Severability of Terms. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the Parties 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 Agreement remain in full force and effect.

    5. Amendment. This Agreement may be modified only in writing, signed by a duly authorized representative of each Party.

    6. Counterparts. This Agreement may be executed in one or more counterparts, including by facsimile transmission, each of which when executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement.

    7. Notices and Contact Information. Any demand, notice, or other communication required or permitted hereunder shall be effective if in writing and either (i) hand-delivered to the addressee; or (ii) deposited in the mail (registered or certified) or delivered to a private express company. Notices must be addressed as follows: (A) if to Mirrabel Inc, at the mailing address or email set forth in the “Contact Us” section of the Site; or (B) if to Subscriber, at the mailing address or email set forth in the Subscriber registration page. Email notice shall only be effective upon confirmation of receipt by the receiving Party. Either Party may change its notice address by providing the other Party with notice of the change.