Fickl App Ltd Software-As-A-Service Terms Of Service

Last updated: 08-08-2023

This Software-as-a-Service Terms of Service ("Agreement"), together with the Sign-Up Form, the Professional Services Addendum, and any related attachments, collectively constitute an agreement between Fickl App Ltd. ("Fickl App") and the customer ("Customer") who accesses, downloads, installs, or utilizes (the terms "utilize" and "utilizing" will refer to any of the aforementioned actions) the Services. This Agreement becomes effective either when Customer first utilizes any aspect of the Services or when Customer agrees to be bound by this Agreement, whichever occurs first (the "Effective Date"). Each reference to Fickl App and Customer will be referred to individually as a "Party" and collectively as the "Parties."

This Agreement outlines the terms and conditions that govern the supply and utilization of the Services by Fickl App.

By making use of the Services (including the website), Customer acknowledges that they have read, accepted, and agreed to comply with the terms and conditions outlined in this Agreement. These terms and conditions are subject to periodic amendments as outlined in Section 11(k). If Customer does not agree to be bound by this Agreement, they must immediately discontinue any further use of the Services. Customer asserts and guarantees Fickl App that they possess the legal capacity to enter into this binding Agreement. If Customer employs the Services on behalf of another individual or entity, Customer hereby declares and assures Fickl App that they possess the legal authority to bind such person or entity to this Agreement.

The Services must not be accessed to monitor their availability, performance, functionality or for any competitive or benchmarking purposes.

Entities that directly compete with Fickl App are explicitly forbidden from accessing the Services unless they obtain prior written consent from Fickl App.

1. Services

(a) Provision of Fickl App SaaS Services

Subject to Customer's adherence to the terms and conditions of this Agreement, Fickl App will provide access to the Fickl App SaaS Services for Customer and its Permitted Users, as outlined in this Agreement throughout the Term.

(b) Restriction of Use

Customer will not itself, and will not permit others to:

(i) sub-license, sell, rent, lend, lease or distribute the Fickl App or any Intellectual Property Rights therein, or otherwise make the Fickl App available to others other than Permitted Users;
(ii) commercially exploit the Fickl App for others;
(iii) use or access the Pocketed SaaS Services:

(A) in violation of any applicable law;
(B) in a manner that threatens the security or functionality of the Fickl App; or
(C) for any purpose or in any manner not expressly permitted in this Agreement;

(v) use the Services to create, collect, transmit, store, use or process any Customer Data:

(A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(B) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
(C) that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);

(vi) Modify Fickl App;
(vii) reverse engineer, decompile or disassemble Fickl App;
(viii) remove or obscure any proprietary notices or labels on Fickl App, including brand, copyright, trademark and patent or patent pending notices;
(ix) access or use Fickl App for the purpose of building a similar or competitive product or service;
(x) perform any vulnerability, penetration or similar testing of Fickl App; or
(xi) use the Services for any purpose or in any manner not expressly permitted in this Agreement.

(d) Permitted Purpose

Customer may access and use Fickl App solely for Customer’s own business purposes.

(e) Geographic Restrictions

Customer may access and use Fickl App from any location in the world, however Customer will be aware that Fickl App is optimized for use in Canada.

f) Suspension of Access; Scheduled Downtime; Modifications

Fickl App may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:

(i) suspend Customer’s access to or use of the Services or any component thereof:

(A) if Customer or any Permitted User violates any provision of this Agreement;
(B) for scheduled maintenance;
(C) due to a Force Majeure;
(D) to address any emergency security concerns;
(E) if required to do so by a regulatory body or as a result of a change in applicable law; or
(F) for any other reason as provided in this Agreement.

(ii) Modify the Services.
Customer is required to accept all patches, bug fixes and updates made by or on behalf of Fickl App.

G) Third-party API’s & Products

Fickl App may contain or require the use of Licensed Third Party Technology or other third-party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third- Party Products provider. Fickl App does not warrant or support Third-Party Products or other third-party products, offerings or services, whether or not they are designated by Fickl App as “certified” or otherwise. Fickl App cannot guarantee the continued availability of such Third-Party Products features and may cease providing them without entitling Customer to any refund, credit, or other compensation if, for example, and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Fickl App. Fickl App is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.

2. User Accounts

(a) In order for Customer to access and use Fickl App, Fickl App will issue one account (the “Customer User Account”) to Customer for use by Customer and all individuals who are employees or contractors of Customer that Customer wishes to have access to and use of Fickl App (each, a “Permitted User”).
(b) The Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of Fickl App in compliance with this Agreement. The Customer will ensure that Permitted Users only use Fickl App through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify Fickl App of any actual or suspected unauthorized use of Fickl App. Fickl App reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.

3. Ownership; Reservation of Rights

(a) The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Fickl App, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose, transfer, transmit, copy, Modify and display Customer Data to:

(i) provide the Services;
(ii) improve and enhance the Services and its other offerings; and
(iii) produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”).
Fickl App may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between Fickl App and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Fickl App.

(b) Fickl App or its licensors retain all ownership and Intellectual Property Rights in and to:

(i) the Services;
(ii) anything developed or delivered by or on behalf of Fickl App under this Agreement;
(iii) all other Fickl App’s Confidential Information, including but not limited to, any reports generated from Fickl App or any Aggregated Data;
(iv) any Modifications to the foregoing (i), (ii) and (iii) (collectively “Fickl App Property”).

(c) Customer grants to Fickl App and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Fickl App, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Fickl App’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Fickl App is not obligated to use any Feedback.
(d) All rights not expressly granted by Fickl App to Customer under this Agreement are reserved.

4. Privacy

Fickl App’s collection, use, storage, processing, disclosure and deletion of Personal Information will be treated in accordance with Fickl App’s privacy statement located at www.ficklmarketing.com/privacy-policy or such other place as may be updated by Fickl App from time to time (the “Privacy Policy”). Fickl App shall treat all such Personal Information in accordance with privacy and data protection laws applicable to Fickl App.

5. Fees and Payment

(a) Fees.

If applicable, Customer will pay to Fickl App the fees described at www.ficklmarketing.com/fickl-marketing-app-pricing (“Fees”). Unless otherwise noted in writing between the Parties (i) all Fees are identified in Canadian Dollars; (ii) Fees are non-cancelable and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. If Customer’s use of Fickl App exceeds the service capacity agreed to between the Parties or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.

(b) Changes to the Fees.

Fickl App reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 30 days prior notice to Customer.

If the Customer believes Fickl App has charged or invoiced the Customer incorrectly, the Customer must contact Fickl App no later than 30 days after having been charged by Fickl App or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, the Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.

(d) Late Payment.

The Customer may not withhold or set off any amounts due under this Agreement. Fickl App reserves the right to suspend the Customer’s access to the Services until all due and undisputed amounts are paid in full.

(e) Taxes.

The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Fickl App.

(f) Suspension.

Any suspension of the Services by Fickl App pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

6. Confidential Information

(a) Definitions.

For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “ConfidenIal Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.

(b) Confidentiality Covenants.

The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:

(i) disclose Confidential Information of the Discloser to any person, except to:

(A) in the case of Customer to its own employee having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writings; or
(B) in the case of Fickl App to Fickl App’s employees, consultants, agents or affiliates, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; to such other recipients as the Discloser may approve in writing; and to its subcontractors or contractors to perform the Services;

(ii) use Confidential Information of the Discloser; or
(iii) alter or remove from any Confidential Information of the Discloser any proprietary legend.
Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

c) Exceptions to Confidentiality.

Notwithstanding Section 6(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.

(d) Return of Confidential Information.

Upon the termination or expiration of this Agreement and all Professional Services Order Forms under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 10(c) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Pocketed may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.

7. Warranty and Disclaimer

(a) Customer Warranty.

Customer represents and warrants to and covenants with Fickl App that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by and in compliance with applicable laws, including applicable privacy laws, to enable Fickl App to provide the Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Fickl App and to or from all applicable third parties.

(b) GENERAL DISCLAIMER.

FICKL APP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY FICKL APP TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FICKL APP HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, FICKL APP EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FICKL APP SAAS SERVICES ARE PROVIDED FOR TECHNOLOGICAL PURPOSES ONLY. ANY DECISION MADE AROUND MARKETING STRATEGY OR MARKETING CONTENT IS MADE AT THE DISCRETION OF THE CUSTOMER. FICKL APP DOES NOT GUARANTEE THE SUCCESS OF ANY MARKETING ACTIVITES CARRIED OUT BY THE CUSTOMER WITH THE USE OF FICKL APP.

8. Customer Indemnity

The Customer will defend, indemnify and hold harmless Fickl App, and its officers, directors, employees and agents (each, a “Fickl App Indemnitee”) from and against any and all Losses incurred by a Fickl App Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Fickl App Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Services by the Customer or any Permitted User; or (iv) use of the Services (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service. Customer will fully cooperate with Fickl App in the defence of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Fickl App. Fickl App will promptly notify the Customer in writing of any Action for which Fickl App believes it is entitled to be indemnified pursuant to this Section 8.

9. Limitation of Liabilities

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

a) AMOUNT.

IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF FICKL APP IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF $250 OR THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL FICKL APP’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

(b) TYPE.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL FICKL APP BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (I) SAVINGS, (II) PROFIT, (III) DATA, (IV) USE, OR (V) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

10. Term and Termination

(a) Term.

This Agreement will commence on the Effective Date and continue to be in effect for a period of 1 year (the “Initial Term”). The Term will automatically renew for successive periods of 1 year (each a “Renewal Term” and with the Initial Term, the “Term”), unless either party provides the other party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term.

(b) Termination and Suspension.

(i) In addition and not withstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Services may be suspended by Fickl App at any time at Fickl App ’s sole discretion.

(ii) Fickl App may immediately terminate Customer’s right to use the Services or this Agreement: (1) if Fickl App believes that Customer or any Permitted User has violated this Agreement; (2) if Fickl App believes the use of Customer Data is not in Fickl App’s or its users’ best interests; (3) if Fickl App ceases to offer the Services or any component thereof; or (4) as required by applicable laws. Notwithstanding any other Section of this Agreement, Fickl App may, in its discretion, terminate the Agreement at any time by providing at least 30 days advance written notice to Customer.

(iii) Either party may terminate this Agreement if the other party commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach.

(iv) Either party may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to the other party if the non-breaching party becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to it for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.

Unless otherwise specified in this Agreement, upon any expiration or termination of this Agreement:

(i) Customer will immediately lose all access to the Services;

(ii) Each party will return or destroy the other party’s Confidential Information;

(iii) In the event the Agreement is terminated by Customer, Customer will not be entitled to any refund or reimbursement of the Fees.

Notwithstanding the foregoing, Fickl App may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.

(d) Survival.

The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 10(d) (Survival), and Section 11 (General Provisions).

11. General Provisions

(a) Notices.

Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Fickl App, to the following Fickl App’s address and email contact:

Fickl App
hello@fickl.ca

and (ii) if to Customer, to the current mailing or email address that Fickl App has on file with respect to Customer. Fickl App may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Fickl App current at all times during the Term.

(b) Assignment.

Customer may not assign this Agreement to any third party without Fickl App’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Fickl App may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.

This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably adorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Fickl App from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.

(d) Export Restrictions.

Customer will comply with all export laws and regulations that may apply to its access to or use of Fickl App. Fickl App makes no representation or warranty that the Fickl App Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.

(e) Construction.

Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.

(f) Force Majeure.

Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 5, 6, or 8.

(g) Severability.

Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

(h) Waiver.

A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

(i) Independent Contractors.

Fickl App’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.

(j) Entire Agreement.

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.

(k) Amendments.

No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, FICKL APP MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY FICKL APP, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).

(l) Customer Lists.

Fickl App may identify the Customer by name and logo as a Fickl App customer on Fickl App’s website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.

(m) English Language.

It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y raPachent soient rédigés en anglais.

12. Definitions

(a) “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to Fickl App, including but not limited to Personal Information, excluding Aggregated Data and any other Fickl App Property.
(b) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafer in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(c) “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
(d) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(e) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(f) “Personal information” means information about an identifiable individual provided by Customer under this Agreement.
(g) “Fickl App Services” means: (i) the services through which Fickl App hosts and makes available the Fickl App as described in an Order Form; and (ii) any component or Modification of the services referred to in.
(h) “Sign Up Form” means an order form that references this Agreement and that is executed by both Parties or otherwise accepted by Customer.
(l) “Website” means any websites used by Fickl App to provide the Fickl App Services, including the websites located at www.ficklmarketing.com.