Setter Inc. is a company incorporated under the laws of Canada, with its head office located at 204-360 Dufferin St., Canada ("Setter", "we", "us", "our"). Setter offers home maintenance, repair, upgrade and installation services (the "Setter Services") that are facilitated through: (i) Setter website www.setter.com (the "Setter Website"); (ii) Setter's mobile application; and (iii) other platforms as Setter may make available from time to time ((i) to (iii), collectively, the "Setter Platform"). The Setter Services and Setter Platform are, collectively, the "Setter Solution".
A. BY CLICKING ACCEPT, VISITING, BROWSING, ACCESSING, DOWNLOADING AND USING THE SETTER SOLUTION, YOU ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE THE SETTER SOLUTION. IF YOU ARE USING THE SETTER SOLUTION ON BEHALF OF ANOTHER PERSON OR A CORPORATE ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THIS AGREEMENT.
B. ARBITRATION NOTICE FOR USERS IN THE UNITED STATES. Except for certain kinds of disputes described in Section 27, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THIS AGREEMENT, YOU AND SETTER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 27 for more details.)
Setter Services Overview
A. The Setter Solution is provided solely to (collectively, (i) through (iii) are the "Permitted Use"): (i) enable you to view, access and browse the Setter Services; (ii) enable you to engage with our representatives to place orders and pay for Setter Services (each a "Quote"); and (iii) enable you to post comments and reviews on the Setter Services.
B. You have a right to cancel your Quote in accordance with your rights under applicable consumer protection law, including, if applicable, the Ontario Consumer Protection Act, RSO 1990, c C.31, as set forth in Section 6.
User Account To use the Setter Platform and receive Setter Services, you are required to successfully create a customer account and enter a verification code (the "Customer Account"). Setter reserves the right to deny your request for Customer Account and to disable any Customer Account issued to you at any time in Setter's sole discretion. If Setter disables access to a Customer Account issued to you, you will be prevented from accessing the Setter Platform and receiving any Setter Services.
Creating an Account and Ordering Setter Services
A. Once you have created your Customer Account you may select individual Setter Services from the list of the Setter Services available on the Setter Platform and submit a request for Setter Services to us.
B. You may also contact us to enter into a subscription services arrangement for the provision of for regular recurring Setter Services (the "Subscription Services") for a duration and pay frequency to be agreed.
C. You will be asked to provide a clear and accurate description of the Setter Services you are seeking. You are solely responsible for confirming the accuracy of all information you provide to us, including the work to be performed and your preferred dates, times, and location at which the work is to be performed (such location, your "Premises").
D. Setter will provide a confirmation by either email, telephone, SMS or the Setter Platform to confirm the details of your Quote, including the date and time of performance of the Setter Services. If we have further questions or clarifications a Setter representative will contact you before a final confirmation is sent.
Your Right to Cancel the Setter Services
A. If you wish to change or cancel your Quote, please contact your Setter representative or Setter's customer care team using the contact details set out below.
B. If you wish to amend or cancel your Quote with a total or partial refund of your Quote's price, you must contact your Setter support representative via email or via the Setter support phone line. Setter will use reasonable efforts to make the changes you request, but, subject to any enhanced commitment that we may advertise on the Setter Platform, from time-to-time, does not guarantee that amendments will be made or full refunds will be provided, if you cancel the order for the Setter Service within 10 days of your approval of the Quote.Setter's ability to make changes to any Quote depends on the context of the specific Quote and whether preparations have already been made to fulfill the Quote for which you are requesting amendments. Setter reserves the right to charge you or deduct from any refund we provide to you a reasonable fee (covering Setter's mobilization, administration fee and any charges for materials Setter has pre-ordered to fulfil your Quote, if any), if you cancel a Quote within 10 days of the date that Setter was scheduled to provide the Services. The mobilization charge will apply if you cancel the Setter Services with less than 48-hours' notice prior to the date and time that a trades person has been booked to perform the Setter Services. All Quotes will expire after 30 days if not approved by you.
C. Setter's email confirmation of payment for the Quote does not indicate that the Quote has been accepted. It is possible, but unlikely that Setter will be unable to complete your Quote. In such a case, Setter will use reasonable efforts communicate that circumstance to you as soon as possible. If Setter has charged you for a Quote that it is unable to complete, Setter will provide you with a refund of the price of your Quote or any deposit you have paid, less any mobilization charge, within 14 days after communicating to you the cancellation of your Quote.
D. You agree that Setter will have no liability to you for Quotes that have been rejected by you.
E. You may cancel the Subscription Services at any time by contacting Setter's customer care team via email or phone at: email@example.com or 647-503-5390, but you will not receive any refund of any pre-paid Subscription Fees. You must cancel your Subscription Services before the next renewal date in order to avoid billing of the next periodic Subscription Fee.
Your Right to Amend Your Quote
A. Your Quote may be edited at any time prior to a Quote being created. Once you have made your selection, you will requested to submit a confirmation of the selected Setter Services. At this time, you will have the opportunity to review your Quote. After your review and confirmation that the Quote is correct, you may click "Book Now" or "Approve Quote" to checkout, and a Quote will be created, and a copy sent to your email address on file with us.
B. By clicking the "Book Now" or "Approve Quote" button, you:
i. will be considered to have agreed to the terms of this Agreement, including the Quote;
ii. authorize us to charge your credit card on file with us in the amount shown on the Quote or we will ask you to pay a deposit and you will be required to pay the balance upon completion of the Setter Service;
iii. grant us, our employees, contractors, and subcontractors the right to access the Premises to perform the applicable Setter Services described in your Quote;
iv. acknowledge that your payment will be refunded if Setter rejects the Quote;
v. acknowledge that dependent on various conditions, many of the Setter Services may require additional Quotes to achieve the desired outcome of the Setter Service requested; and
vi. acknowledge and agree that Setter's overhead and profit is to be included in the cost of each item selected, or as an individual item.
C. For residents of Canada, any Quote accepted by Setter will be deemed made in Toronto, Ontario. For residents of the United States, any Quote accepted by Setter will be deemed made in San Francisco, California.
Warranty and Customer Care
A. We warrant that the Setter Services and any materials provided as part of such Setter Services will be performed, subject to any enhanced commitment that we may advertise on the Setter Platform, from time-to-time, to a reasonably acceptable standard of quality in accordance with local practices for the type of Setter Service being performed or material being provided.
B. If you have any problems, questions or suggestions with respect to the Setter Services or the Setter Platform, please contact Setter's customer care team via email or phone at: firstname.lastname@example.org or 647-503-5390.
Subscription Fees and Payment; Fees for Quotes; Payment Processor
A. Fees. You will pay to Setter the following (the "Fees"):
i. the applicable monthly or quarterly, subscription fees, in advance, if any, agreed with you, if you have agreed to our Subscription Services (the "Subscription Fees") during the Term in accordance with the payment terms set out herein; and
ii. the applicable fee for any Setter Services that you have ordered;
iii. any additional required costs incurred by Setter to facilitate the Setter Service that you have ordered; and
iv. the applicable fee for any visit made by a Setter staff member to the Premises.
i. Invoicing. From time-to-time, Setter will prepare and send to the Customer, at the then-current contact information on file with Setter, an invoice for any Fees that have become due and payable. If Setter sends the Customer an invoice the payment will be captured the moment the Customer enters the Customer's credit card information to pay the invoice. If Setter accepts a credit card payment for quotes the payment will be captured 48 hours after the Setter Service has been scheduled. Unless otherwise expressly stipulated in an invoice, Customer will pay (or, if Customer is paying through a credit card, Customer authorizes Setter to charge to Customer's credit card) all invoiced amounts within 30 calendar days of the invoice date.
ii. Subscription Service. If you select a Subscription Service, you authorize Setter to periodically charge your credit card at one of the following intervals (as applicable to the Subscription Service you elect to subscribe to): monthly, bi-monthly, quarterly, bi-annually, or annually, on a going-forward basis and until cancellation of either the Subscription Service or your Customer Account. For greater certainty, if Customer has subscribed to an ongoing Subscription Service, then such subscription will automatically renew at its expiry for the same period, at the then-current subscription rate described on the Setter Website, and Setter will invoice or charge Customer in advance of or upon such renewal for the next subscription period. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee. You may cancel the Subscription Service in accordance with Section 6(e).
C. Disputed Invoices or Charges. If Customer believes Setter has charged or invoiced Customer incorrectly, Customer must contact Setter no later than 30 days after having been charged by Setter or receiving such invoice in which the error or problem appeared in order to receive an adjustment or credit. In the event of a dispute, Customer will pay any disputed 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. Customer may not withhold or "setoff" any amounts due under this Agreement. Setter reserves the right to suspend Customer's access to the Setter Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less) per month or fraction thereof, plus all expenses of collection, until fully paid.
E. Certain Taxes. The Fees do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes, and all applicable 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, and Customer will pay, indemnify and hold harmless Setter from same, other than taxes based on the net income or profits of Setter.
F. Payment Processing Services. In addition to other payment methods, payment processing services for the Setter Services are provided by payment services providers as Setter may choose from time to time (collectively referred to herein as the "Payment Processing Services Provider"). You hereby authorize Setter to share with the Payment Processing Services Provider that financial information, banking details and transaction information related to your use of the payment processing services and the Setter Services. You also agree that Setter is not responsible for the use or misuse of such financial information, banking details and transaction information by the Payment Processing Services Provider or any third party.
B. Setter reserves the right to change the Setter Solution, and any information, material or content (including, but not limited to, price, features, availability of the Setter Services) contained on the Setter Platform (the "Content") at any time, and from time to time, without notice.
Use of the Setter Solution
A. As a condition of your use of the Setter Solution, you represent and warrant that: (i) you have reached the age of majority in your jurisdiction of residence; (ii) you possess the legal authority to create a binding legal obligation; (iii) you will use the Setter Solution in accordance with this Agreement and for the Permitted Use only; and (iv) all information supplied by you on the Setter Platform is true, accurate, current and complete.
B. Setter retains the right, at its sole discretion, to deny access to anyone to the Setter Solution, at any time and for any reason (or no reason at all), including, but not limited to, for violation of this Agreement or use other than the Permitted Use. You will cease and desist from any such access or use of the Setter Solution immediately upon request by Setter.
Access and License Grant Subject to your compliance with this Agreement, Setter grants you a personal, revocable, non-exclusive and non-transferable right to (i) install and use one object code copy of any mobile application associated with the Setter Platform obtained from a legitimate marketplace and (ii) use the Setter Platform in accordance with this Agreement and for the Permitted Use only.
Term and Termination This Agreement will commence on the day you first accept this Agreement and will continue into force until terminated by either party in accordance with the terms and conditions herein (the "Term"). This Agreement may be terminated as follows: (a) Setter may terminate this Agreement at any time and with immediate effect by giving notice to you, at Setter's discretion, by email (at your current email address on file with Setter) or through the Setter Platform; (b) you may terminate this Agreement at any time and with immediate effect by requesting (by email or through any then-available interfaces on the Setter Platform) that your Customer Account be deleted and ceasing use of the Setter Solution and uninstalling and removing all local components thereof, if any.
In the event this Agreement is terminated by Setter for any reason other than your breach of this Agreement, Setter will provide you with a refund of the any pre-paid fees under an outstanding Quote or any deposit you have paid for Setter Services not yet performed, less Setter's administration fee and any charges for materials or services Setter has pre-ordered to fulfill your Quote, if any. For the avoidance of doubt, you will not be entitled to a refund of any other Fees, including any Subscription Fees. When this Agreement is terminated, for any reason, any provision that by its nature should survive (or that specifically states that it will survive) will survive the termination, including the following: Sections 13, 14(a), 14(c), 15, and 22 through 31.
Submissions and Feedback
A. By providing or uploading any reviews, questions, comments, records, files, material or similar content, including any content provided in connection with a Quote (collectively, "Submissions") to Setter and the Platform, you grant Setter and its affiliates, a worldwide, nonexclusive, royalty-free, perpetual, transferable, irrevocable and fully sub licensable right to (i) use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such Submissions throughout the world in any media, now known or hereafter devised; and (ii) use your name and other information about you in connection with Setter's use of such Submission. You acknowledge that Setter may choose to provide attribution of your Submissions (for example, listing your name and city on a review that you use) at Setter's discretion, and that such submissions may be shared publicly. You acknowledge and agree that Submissions are non-confidential and non-proprietary.
i. Submissions Representations and Warranties. You are solely responsible for your Submissions and the consequences of providing Submissions via the Setter Solution. By providing Submissions via the Setter Solution, you affirm, represent, and warrant that:
ii. you are the creator and owner of the Submissions, or have the necessary licenses, rights, consents, and permissions to authorize Setter and users of the Setter Solutions to use and distribute your Submissions as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Setter and this Agreement;
iii. your Submission, and the use of your Submission as contemplated by this Agreement, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Setter to violate any law or regulation; and
iv. your Submission could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
B. Setter takes no responsibility and assumes no liability for any Submissions posted or approved by you or other users. Setter has no obligation to implement or post your Submissions and reserves the right, in its absolute discretion, to determine which Submissions are published on the Setter Platform. If you do not agree to any of the foregoing, please do not provide us with any Submissions. You acknowledge that Setter may exercise its rights (including, use, publish, delete) to use any Submissions without any notice to you. Setter does not control and does not have any obligation to monitor Submissions or the use of the Setter Solution by its users.
C. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Setter Solution ("Feedback"), then you hereby grant Setter an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Setter Solution and create other products and services
A. All Content, including (without limitation) all designs, infrastructure graphics, pictures, illustrations, software, artwork, video, music, sound, names, words, titles, phrases, logos and marks displayed on or used in connection with the Setter Solution, are owned or licensed by Setter and are protected by copyright, trade-mark and other intellectual property laws.
B. Setter expressly reserves all rights in the Setter Solution and all materials provided by Setter in connection with the Agreement that are not specifically granted to you. You acknowledge that all right, title and interest in the Setter Solution, all materials provided by Setter in connection with the Setter Solution (including the Content), and any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Setter (or third party suppliers, if applicable), and that the Setter Solution and all materials provided by Setter hereunder are licensed and not "sold" to you.
C. All contents of the Setter Website are: ©2020 Setter Inc.
- No Unlawful or Prohibited Use
You will not, without Setter's prior written permission, use the Setter Platform or the Content for purposes other than the Permitted Use. Without limiting the generality of the foregoing, you will not (and will not attempt to), and will not permit anyone else to (or attempt to): (a) "frame", "mirror" or otherwise incorporate the Setter Platform or the Content or any part thereof on any website; (b) access, monitor or copy any part of the Setter Platform or the Content using any robot, spider, scraper or other automated means; (c) violate the restrictions in any robot exclusion headers on the Content or the Setter Platform or bypass or circumvent other measures employed to prevent or limit access to the Setter Platform or the Content; (d) take any action that imposes, or may impose, in Setter's discretion, an unreasonable or disproportionately large load on the Setter Platform; (e) remove any watermarks, labels or other legal or proprietary notices included in the Setter Platform or the Content; (f) modify the Setter Platform or the Content, including any modification for the purpose of disguising or changing any indications of the ownership or source of the Setter Platform or the Content; (g) attempt to, assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components, such as digital rights management software or encryption, that protect the Setter Platform or the Content; (h) copy, reproduce, modify, distribute, transfer, sell, publish, broadcast, perform, transmit, publish, license or circulate in any form any part of the Setter Platform or the Content; (i) create derivative works based on the Setter Platform or the Content, in whole or in part, or decompile, disassemble, reverse engineer or other exploit any part of the Setter Platform or the Content; or (j) use or access the Setter Platform or the Content in a manner that violates the rights (including, but not limited to intellectual property rights) of any third party.
- Third Party Websites
The Setter Website may provide links to third party websites. Setter does not endorse the information contained on those web sites or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability or fitness for any purpose. The content in any linked web site is not under Setter's control, and if you choose to access any such website, you do so entirely at your own risk.
The downloading and viewing of Content is done at your own risk. Setter cannot and does not guarantee or warrant that the Setter Platform or the Content are compatible with your computer system or that the Setter Platform or the Content, or any links from the Setter Platform or the Content, will be free of viruses, worms, malware, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system, and you are responsible for the entire cost of any service, repairs or connections of and to your computer system that may be necessary as a result of your use of the Setter Platform.
A. Confidentiality. Setter does not guarantee the confidentiality of any communications made by you through the Setter Platform. Although Setter generally adheres to the accepted industry practices in securing the transmission of data to, from and through the Setter Platform, you understand, agree and acknowledge that Setter cannot and does not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Setter Platform.
B. Text Messaging. Setter and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Setter Solution, as well as marketing messages. You may opt out of receiving marketing text messages at any time by sending an email to email@example.com indicating that you no longer wish to receive marketing texts along with the phone number of the mobile device receiving the texts. You may continue to receive text messages for a short period while we process your request, and you may also receive text messages confirming the receipt of your opt-out request. Operational text messages are essential to use of the Setter Solution. If you do not wish to receive operational text messages from us, do not use the Setter Solution. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive marketing text messages is not a condition of any purchase or use of the Setter Solution. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
C. Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
A. Access to Premises. You covenant, represent and warrant that you have the right (including any permissions or consents necessary from any third parties, including without limitation, the owner, landlord, or management of the Premises or the site where the Premises is located, and any co-occupant of the Premises) to grant us, our employees, contractors, and our subcontractors, access to the Premises to perform the applicable Setter Services and unless otherwise agreed, will be present at the Premises or will have a representative who is 19 years old or older at the Premises at all times while the Setter Services is being performed.
B. Personal Information. You covenant, represent and warrant that any data, information, or materials that you upload or transmit to the Setter Platform or otherwise provide to Setterwill only contain Personal Information in respect of which you have provided all notices and disclosures and obtained all applicable third party consents, permissions and otherwise have all authority, in each case as required by applicable laws, to enable us to make available the Setter Platform and to provide the Setter Services.
A. GENERAL DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, THE SETTER SOLUTION (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SETTER SERVICES PROVIDED BY SETTER TO YOU ARE PROVIDED "AS IS" AND "AS AVAILABLE".
B. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, SETTER HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES 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.
C. SETTER DOES NOT WARRANT THAT THE SETTER PLATFORM (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SETTER EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER'S USE OF THE SETTER PLATFORM (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
D. SETTER SERVICES DISCLAIMER. EXCEPT AS SPECIFICALLY COMMUNICATED TO YOU IN WRITING ON THE SETTER PLATFORM OR SET OUT IN THIS AGREEMENT:
i. SETTER MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE PROVISION OF THE SETTER SERVICES (INCLUDING ANY WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR QUALITY OF THE SETTER SERVICES) OR THE ACCEPTANCE OR REJECTION OF ANY QUOTES;
ii. SETTER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE WORKMANSHIP, TIMELINESS, INTEGRITY, ABILITY OR SKILL OF THE INDIVIDUALS THAT PERFORM THE SETTER SERVICES;
iii. WITHOUT LIMITING THE FOREGOING, SETTER SUBCONTRACTS THE PERFORMANCE OF THE SERVICES, AND SETTER DOES NOT REPRESENT OR WARRANT THAT THE INDIVIDUALS PERFORMING THE SETTER SERVICES HOLD ANY QUALIFICATION, CERTIFICATION, LICENSE, SCHOOLING, TRAINING, OR INSURANCE REQUIRED AT THE TIME THAT SUCH INDIVIDUALS PROVIDE THE SETTER SERVICES.
E. SAFETY DISCLAIMER. WHILE SETTER PERFORMS DUE DILIGENCE ON THE INDIVIDUALS THAT PERFORM THE SETTER SERVICES ON YOUR PREMISES, YOU SHOULD NEVERTHELESS EXERCISE DUE DILIGENCE, CAUTION AND COMMON SENSE TO PROTECT YOUR PERSONAL SAFETY AND PROPERTY.
Limitation of Liability
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. TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL SETTER BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; OR (IV) ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
B. AMOUNT. EXCEPT AS PROVIDED IN SECTION 27(b)(v) AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF SETTER IN CONNECTION WITH USE OR INABILITY TO USE THE SETTER SOLUTION OR UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY YOU AND RECEIVED BY SETTER IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SETTER'S THIRD-PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
You will defend, indemnify and hold harmless Setter and all of its officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature, including, but not limited to, reasonable legal and accounting fees, brought in connection with or as a result of:
A. your breach of any of your warranties, representations or obligations under this Agreement, any Quote, or any documents referenced herein;
B. misrepresentation, criminal behaviour or gross negligence on your part;
C. your violation of any law or the rights of a third party (including, without limitation, intellectual property rights); and
D. your use of the Setter Platform and the Setter Services contrary to this Agreement, any documents referenced herein, or any policies or guidelines available on the Setter Platform.
Geographic Application of the Setter Solution
Not all of the Setter Services are available in all jurisdictions. Furthermore, nothing on the Setter Services constitutes an offer or solicitation to buy or sell any product or service to anyone in any jurisdiction in which such an offer or solicitation is prohibited by law. The Setter Solution is intended for users located within Canada and the United States. We make no representation that the Setter Solution is appropriate or available for use outside of Canada and the United States. Access to the Setter Solution from countries or territories or by individuals where such access is illegal is prohibited.
- Force Majeure
Setter will not be liable to you for any failure of or delay in the performance of its obligations under the Agreement for the period that such failure or delay is due to causes beyond Setter's reasonable control, including, but not limited to, acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event.
Governing Law and Jurisdiction, Dispute Resolution and Arbitration
A. Residents of Canada. If you are a resident of Canada and/or using the Setter Services in Canada, this Section 27(a) applies to you:
i. This Agreement will be governed by the laws of the Province of Ontarioand the federal laws of Canada applicable therein. These laws apply to your access to or use of the Setter Platform, the Setter Services and the Content, notwithstanding your domicile, residency or physical location. The Setter Platform, the Setter Services and the Content are intended for use only in jurisdictions where they may lawfully be offered for use.
ii. Except as restricted by applicable law, you hereby consent to the exclusive jurisdiction and venue of courts in Toronto, Ontario, Canada in all disputes arising out of or relating to the use of the Setter Platform, the Setter Services or the Content.
B. Residents of the United States. If you are a resident of the United States and/or using the Setter Services in the United States, this Section 27(b) applies to you:
i. Generally. In the interest in resolving disputes between you and Setter in the most efficient and cost effective way, and except as described in Sections 27(b)(ii) and 27(b)(iii), you and Setter agree to resolve any and all disputes arising in connection with this Agreement or your use of the Setter Solution by binding arbitration. Arbitration is less formal than a lawsuit in court. It uses a neutral arbitrator instead of a judge or jury, may allow for limited discovery (i.e., pre-trial fact finding) than in court, and usually is not appealable in court. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND SETTER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT.
ii. Exceptions. Despite the provisions of Section 27(b)(i), nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to (a) bring an individual action in small claims court, (b) pursue enforcement actions through applicable federal, state, or local agencies, (c) seek injunctive relief in a court of law in aid arbitration, or (d) to file a lawsuit in a court of law to address intellectual property claims.
iii. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 27 within 30 days after the date that you agree to this Agreement by sending a letter to Setter, Inc., Attention: Legal Department -- Arbitration Opt-Out, Setter, Inc., 360 Dufferin St, Toronto, Canada that specifies: your full legal name, the email address associated with your Customer Account, and a statement that you wish to opt out of arbitration ("Opt-Out Notice"). Once Setter receives your Opt-Out Notice, this Section 27(b)(i)-(ix) will be void and any action arising out of this Agreement will be resolved as set forth in Section 27(b)(x). The remaining provisions of this Agreement will not be affected by your Opt-Out Notice.
iv. Arbitrator. Any arbitration between you and us will be settled under the Federal Arbitration Act and administered by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (collectively, "AAA Rules") as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Setter. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
v. Notice and Process. If one of us intends to seek an arbitration, then they must first send a written notice of the dispute to the other party, by certified mail or Federal Express (signature required), or, if we don't have a physical address on file for you, by email ("Notice"). Our address for Notice is: Setter, Inc., 360 Dufferin St, Toronto, Canada. Any Notice must (a) describe the nature and basis of the claim or dispute, and (b) describe the specific relief requested ("Demand"). You and we agree to use good faith efforts to resolve any claim directly, but if we don't reach a resolution within 30 days after the Notice is received, you or we may start arbitration proceedings. During the arbitration proceeding, the amount of any settlement offers by you or us will not be disclosed to the arbitrator until after the arbitrator makes a final decision and award (if any). If our dispute is resolved through arbitration in your favor, we will pay you the greater of: (i) the amount awarded by the arbitrator (if any), (ii) the last written settlement offered by us to settle the dispute prior to the arbitrator's award, and (iii) $10,000.
vi. Fees. If you commence arbitration under this Agreement, we will reimburse you for your payment of the filing fee if your claim is for $10,000 or less. Otherwise, the payment of filing fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator rules that the substance of your claim or the relief you seek in the Demand is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and you agree to reimburse us for any amounts we previously paid but for which you are obligated to pay under the AAA Rules. The arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award (if any) are based. The arbitrator may make rulings and resolve disputes regarding the payment of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
vii. No Class Actions. YOU AND SETTER EACH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Unless you and Setter agree otherwise, the arbitrator cannot consolidate more than one person's claims and may not preside over any form of representative or class proceeding.
viii. Modifications to this Arbitration Provision. If we make any future changes to this arbitration agreement (other than a change to our address for Notice), you can reject the changes by sending us written notice (to our address for Notice) within 30 days of the change. If you do so, your Customer Account will immediately terminate and this arbitration agreement, as in effect immediately prior to the amendments you rejected, will survive termination.
ix. Enforceability. If Section 27(b)(vii) is found to be unenforceable, or if the entirety of the arbitration agreement in this Section 27(b)(i)-(ix) is found to be unenforceable, then this Section 27(b)(i)-(ix) will be null and void and, if this happens, you and we agree to submit any disputes arising in connection with this Agreement or your use of the Setter Solution in the exclusive jurisdiction described in Section 27(b)(x).
x. Governing Law. If you are a resident of the United States or using the Setter Services in the United States, this Agreement is governed by the laws of California, without regard to its conflict of laws principles. If a lawsuit is permitted under this Agreement, you and we agree to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California.
Entire Agreement, Waiver and Severability
B. Setter may, in its sole discretion, provide any notices to you in connection with the Agreement through the Setter Platform or by email at the then-current email address for you on file with Setter. You may provide notices to Setterby writing to the following address: 360 Dufferin St, Toronto, or by email at: firstname.lastname@example.org. Setter may change its notice contact information from time to time by posting updated contact details on the Setter Website.
C. Setter's failure to insist upon or enforce strict performance of any provision of the Agreement will not be construed as a waiver of any provisions or right.
D. If any of the provisions contained in the Agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination will not affect the remaining provisions contained herein.
E. It is the express wish of the parties that the Agreement and all related documents be drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
Digital Millennium Copyright Act
A. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Setter Platform, you may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
360 Dufferin St, Suite 204 Toronto, Canada
Any notice alleging that materials hosted by or distributed through the Setter Platform infringe intellectual property rights must include the following information:
i. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
ii. a description of the copyrighted work or other intellectual property that you claim has been infringed;
iii. a description of the material that you claim is infringing and where it is located on the Setter Platform;
iv. your address, telephone number, and email address;
v. a statement by you that you have a good faith belief that the use of the materials on the Setter Platform of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
vi. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
B. Repeat Infringers. Setter will promptly terminate the accounts of users that are determined by Setter to be repeat infringers.
Notice California Residents If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Setter Solution or to receive further information regarding use of the Setter Solution.
Notice Regarding Apple This Section 31 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that this Agreement is between you and Setter only, not with Apple Inc. ("Apple"), and Apple is not responsible for the Setter Platform or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Setter Platform. If the Setter Platform fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Setter Solution. Apple is not responsible for addressing any claims by you or any third party relating to the Setter Platform or your possession and/or use of the Setter Platform, including: (a) product liability claims; (b) any claim that the Setter Platform fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Setter Platform and/or your possession and use of the Setter Platform infringe a third party's intellectual property rights. You agree to comply with any applicable third party terms when using the Setter Platform. Apple and Apple's subsidiaries are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.