Quaffed Member Agreement

Updated as of March 15, 2022

 

QUAFFED MEMBER AGREEMENT

 

BY COMPLETING THE REGISTRATION PROCESS, CLICKING TO ACCEPT THIS AGREEMENT OR ACCESSING, DOWNLOADING OR USING ANY ELEMENT OF QUAFFED, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS, DOWNLOAD OR USE QUAFFED.

 

This Quaffed Member Agreement (this “Agreement”) is entered into by and between CanRad Beauty Limited (“CanRad”), and the entity accessing, downloading, or using Quaffed (“Member” or “you”). The “Effective Date” of this Agreement is the earliest of the date on which Member clicks to accept this Agreement or otherwise registers for, accesses, or uses Quaffed.

 

This Agreement permits Member to order Quaffed through one or more executed order or intake forms referencing this Agreement or online through a registration page (in each case, an “Order”). The Order will identify the salon(s) for which Quaffed is permitted to be used (“Salon(s)”). In addition to the terms below, each Order is deemed part of this Agreement to the extent it covers CanRad products and services with respect to Quaffed. Each party expressly agrees that this Agreement is legally binding upon it. Member understands and agrees that CanRad may modify this Agreement from time to time as permitted herein.

 

This Agreement is divided into two parts. Part 1 describes the terms that govern your use of Quaffed. Part 2 explains Members’ obligations under CanRad’s service policy for Quaffed. If you are an individual accepting on behalf of Member, you represent and warrant that (i) you are of legal age to form a binding contract and have full legal authority to bind Member to this Agreement, (ii) you have read and understand this Agreement and (iii) you agree, on behalf of the Member, to this Agreement.

 

PART 1: TERMS AND CONDITIONS

 

  1. Definitions.

 

“Applicable Law” means, collectively, all national, federal, state, provincial and local statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requirements, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law and for greater clarity includes equitable laws, common law, and civil law (including jurisprudence) and specifically incorporate, for greater clarity and disclosure: (i) all statutes and regulations pertaining to Intellectual Property and Intellectual Property Rights, including patent law, copyright law (including moral rights), trade-mark law, design patent or industrial design law, semi-conductor chip or mask work law; (ii) all statutes and regulations pertaining to Personal Information, electronic documents, privacy, data and the like, including the Digital Millennium Copyright Act (United States), California Consumer Privacy Act (United States) General Data Protection Regulation (EU), Personal Information Protection and Electronic Documents Act (Canada), Canada’s Anti-Spam Legislation (CASL); (iii) all statutes or regulations or directives or political policies pertaining to export laws, including those pertaining to Canadian, European Union, British, United States or United Nations embargo, sanction or restricted trade countries or parties, including, but not limited to, OFAC’s List of Specially Designated Nationals and Other Blocked Persons, the U.S. State Department's Nonproliferation Sanctions lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List, or subject to end destination export control regulations, such as, but not limited to, the U.S. Export Administration Regulations and EU Dual-Use Regulation EC 428/2009; and (iv) all statutes and regulations pertaining to applicable anti-corruption and anti-bribery and anti-money laundering.  References to Applicable Law will include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Applicable Law;

 

“Quaffed Hardware” means the hardware systems or devices, if any, to be provided by CanRad pursuant to an Order.

 

“Quaffed Network” means the proprietary Quaffed online reservation network (or any successor network) consisting of Quaffed.ca and any other websites, wireless platforms or applications owned or operated (in whole or in part) by CanRad or its affiliates, and any third party partner websites, platforms or services in relation to which CanRad or its affiliates enter into agreements from time to time.

 

“Quaffed System” or “Quaffed” means CanRad’s system that enables reservation and appointment management capabilities, and product sales with respect to each Member subject to this Agreement, as specified in the applicable Order, as made available through the features and functionality of the Quaffed Network.

 

“Quaffed Software” means the object code version of CanRad’s proprietary software provided to Member, which may consist of one or more applications or modules and may include desktop, mobile or other software, and any updates thereto as may be provided by CanRad.

 

  1. Licenses and Support.

 

  • Quaffed System License.
    • License Grant. Subject to the terms and conditions of this Agreement, CanRad hereby grants Member a non-exclusive, nontransferable, nonsublicensable, revocable license to use the Quaffed System during the Term, but only in connection with the applicable Member’s authorized access to and promotion on the Quaffed Network and management of Consumer reservations and product sales through such Member.

 

  • Restrictions. Member agrees not to and agrees not to permit any third party to: (a) copy, modify or make derivatives of, reverse engineer, disassemble, decompile or otherwise attempt to discover any portion of the source code or trade secrets of the Quaffed System (except to the extent such prohibition on reverse engineering is prohibited by law, and then only upon advance notice to CanRad); (b) distribute, sell, sublicense, rent, or lease the Quaffed System, or otherwise provide third parties with use of the Quaffed System; (c) remove, obscure or alter any notice of any copyright, trademark, patent or other proprietary right related to the Quaffed System; (d) publicly disseminate performance information or analysis regarding the Quaffed System; (e) use any deep-link, robot, spider, scraper or other automatic or manual device, process or means to access, copy, search or monitor any portion of the Quaffed System, except as expressly authorized by CanRad; (f) take any action that imposes or may impose (in CanRad’s sole determination) an unreasonable or a disproportionately large load on the Quaffed System; (g) utilize any device, software or routine that will interfere or attempt to interfere with the functionality of the Quaffed System; (h) use any portion of the Quaffed System to provide, or incorporate any portion of the foregoing into, any product or service provided to a third party; or (i) use the Quaffed System except as expressly permitted hereunder. For clarity, this Agreement does not grant Member any rights to access or use any Quaffed System, websites or data other than the Quaffed System and Quaffed Data as expressly permitted hereunder.

 

  • Setup, Training and Support. CanRad will provide setup, training and support services for the Quaffed System in accordance with its standard internal policies. Member may use deliverables or work product provided by or on behalf of CanRad in connection with such services (“Deliverables”) solely in support of Member’s permitted use of the Quaffed System and subject to the same terms and conditions as apply to the Quaffed System hereunder.

 

  • Promotion and Online Reservations; Use of Member Listing Materials. CanRad will place listings for Member’s Salon(s) on the Quaffed Network and will allow users of the Quaffed Network (“Users”) to make online reservations at the Salon(s). Users may also purchase CanRad’s salon and other care products (“Salon Products”) through e-commerce plugins made available on each Member-branded Quaffed webpage (“Member Page”). During the applicable Term(s), CanRad may copy, distribute, publicly display and perform, and reformat Member Listing Materials for purposes of promoting and making available reservations for Member’s Salons that are on the Quaffed Network. All goodwill arising from use of Member Listing Materials will inure to the benefit of Member. “Member Listing Materials” means trademarks, trade names, business names, logos, descriptions, menus and/or photographs of Member’s Salon(s).

 

  • Hardware-Specific Terms. All Quaffed Hardware, if any, is leased to Member, not sold. All title to the Quaffed Hardware, if any, remains with CanRad, and Member will not permit the Quaffed Hardware, if any, to become subject to any liens or security interests. For clarity, “Quaffed Hardware” does not include hardware systems or devices procured by Member from any third party supplier.

 

  • Salon Product Terms. The Parties acknowledge that CanRad is responsible for the sale of all Salon Products and may cancel, refund, or delay the shipment of any Salon Products to purchasers at any time in accordance with CanRad’s policies in effect at the time of purchase. CanRad shall determine the sales price for any and all Salon Products and may offer discounts or limited time offers at its discretion.

 

  1. Data. During the applicable Term, CanRad will provide Member with certain Quaffed Data as permitted under Quaffed’s then-current Privacy Policy (currently located at [https://quaffed.ca/policies/privacy-policy]) (the “Privacy Policy”). Subject to the terms and conditions of this Agreement (including the representations and warranties in Section 4.4 (Representations and Warranties), Member may use such Quaffed Data as CanRad may provide for its lawful business purposes. “Quaffed Data” means data related to Users and Users’ reservations at Member’s Salon(s) that CanRad makes available to Member through the Quaffed System. Subject to the terms and conditions of this Agreement, CanRad may use any Member Data provided by Member for CanRad’s lawful business purposes. “Member Data” means Salon schematic information, reservation information and similar data submitted by Member to the Quaffed System, but excluding Quaffed Data. As between the parties, Member shall retain all right, title and interest (including any and all intellectual property rights) in and to the Member Data as provided to CanRad. During the thirty (30) day period after the Term ends, provided that Member is current in all payments, Member will have the opportunity to request that CanRad export or download for Member the Member Data and Quaffed Data in Member’s account of the Quaffed System.

 

  1. Member’s Obligations.

 

  • Registration and Login Information; Responsibility for Employees. All information Member provides to CanRad to establish or maintain its Quaffed System account must be true, accurate, current and complete. Such information may include physical address, email address, phone number and other information as CanRad may reasonably request. Member will limit use of the Quaffed System to its authorized employees acting on its behalf to support its authorized use of the Quaffed System, be responsible for such employees’ compliance with this Agreement and not grant access to the Quaffed System to any other third party. Member must, and must require its employees to, keep all login and password information for the Quaffed System strictly confidential and not share such information with any unauthorized person. Member will be responsible for all actions taken through Member’s account for the Quaffed System, and Member agrees to immediately notify CanRad of any unauthorized use of its account or any other breach of security related to its use of the Quaffed System. To the extent Member wishes to grant third-parties, including service providers (each a “Third Party Recipient”) access to any other Quaffed Systems, or websites, any such Third-Party Recipient must enter into a separate agreement with CanRad.

 

  • Online Reservations. Member agrees to accept online reservations processed through the Quaffed Network and honor those reservations in accordance with the Member Responsibilities provisions in Part 2 of this Agreement.

 

  • Member Responsibilities for Quaffed System. Member shall be fully responsible for any loss or damage that occurs to the Quaffed System while in Member’s possession and agrees to take reasonable steps to protect the Quaffed System from theft, damage, deterioration or loss. If a Quaffed System is damaged, stolen or lost, Member will be responsible for the costs of repair or replacement. Member will also remain responsible for all applicable rental fees, provided that CanRad has provided a repaired or replacement unit. CanRad recommends that Member obtain adequate property damage and public liability insurance covering the Quaffed Hardware and its use during the Term of this Agreement.

 

  • Representations and Warranties. Member represents, warrants and covenants to CanRad that (a) it has the requisite right, power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement; (b) this Agreement has been accepted by Member and constitutes a legally valid and binding obligation of Member, enforceable against Member in accordance with its terms; (c) Member owns or controls the Salon(s) and shall be responsible for the Salon(s)’ compliance with this Agreement; (d) in its access or use of the Quaffed System and access or use of the Quaffed Data, Member will comply with all applicable foreign, federal, state and local laws and regulations, including without limitation all Applicable Law, and the CanRad Privacy Policy; (e) to the extent Member shares or provides any Quaffed Data to any Third Party Recipient, Member shall remain responsible for such Third Party Recipient’s use of such data in accordance with this Agreement; and (f) Member has all necessary rights, consents and permissions to provide all Member Data and Member Listing Materials to CanRad and grant the rights granted by Member herein, and the exercise of CanRad’s rights to Member Data and Member Listing Materials as contemplated herein will not violate or infringe any Laws, third party intellectual property right, right of privacy or right of publicity or any applicable privacy policy of Member.

 

  1. Indemnity by Member. Member will indemnify, defend (at CanRad’s option) and hold harmless CanRad, its affiliates and their respective employees, directors, officers, employees, representatives and agents (“CanRad Indemnified Parties”) from and against any claim brought or threatened by a third party arising from: (a) Member’s breach of any provision, warranty or representation in this Agreement; (b) Member’s willful acts or omissions, negligence, or other similar wrongdoing; (c) the purchase of any Salon Products by way of the Quaffed Network or (d) Member’s failure to comply with any Applicable Law. Member will pay all costs (including, but not limited to, court costs and reasonable attorneys’ fees and costs), damages, losses, liabilities, expenses, penalties, judgments and settlements incurred by the CanRad Indemnified Parties, or which the CanRad Indemnified Parties otherwise become subject to, in connection with or arising from any such claim. Member may not settle any such claim without CanRad’s prior written consent. CanRad may assume the defense of any such claim at its option and Member’s expense, but this shall not limit Member’s other obligations under this Section 5.

 

  1. Quaffed Rewards. During the term of this Agreement, CanRad shall pay to Member a revenue share equal to twenty per-cent (20%) of Net Revenues from the sale of any Salon Products purchased by Users on the Member Page (“Quaffed Rewards”). For purposes of this Agreement, "Net Revenue" means all amounts actually received (not including any portion of payment made through the redemption of coupons or credits, or the purchase of gift certificates or gift cards) from a transaction initiated through the Member Page in accordance with this Agreement, where the Consumer purchases such Salon Products, less all taxes, shipping and handling charges, third party charges (including without limitation charges from platform operators (eg. Ex. Apple App Store, Google Play Store, Shopify, etc.) and other value-added service charges, returns and chargebacks. No Quaffed Rewards are applicable to reservations made through the Quaffed System or inventory sold from the Member’s retail location.

 

  • Payment Terms. Subject to the terms and conditions of this Agreement, CanRad will pay Member the above-described Quaffed Rewards on a monthly basis in the form of cash, credit note, or as such other method as CanRad shall determine from time to time, in arrears. CanRad will send, or cause to be sent, to Member a check for the Quaffed Rewards earned, less any taxes or other amounts that are withheld pursuant to Applicable Law. No interest will be paid on any such amount held by CanRad. If a Quaffed Rewards payment is made hereunder and relates to merchandise that is later returned by the Consumer, the applicable Quaffed Rewards will be deducted from the next applicable payment hereunder. If any portion of such Quaffed Rewards cannot be recovered through a deduction, CanRad will invoice Member for such amount and Member agrees to pay this amount within 30 days after receipt of such invoice. Upon termination of this Agreement, CanRad will send or cause to be sent, to Member, a check for the total amount of Quaffed Rewards then owed to Member as of the termination date. The final Quaffed Rewards payment may be withheld for a reasonable period to ensure that the correct amount is to be paid after making any adjustments that may be required, including, but not limited to, adjustments for returns.

 

  • Each Party will be responsible for the payment of all applicable taxes, including sales, duties, and levies levied on that Party by or under Applicable Law from time to time in relation to the delivery or consumption of the Quaffed Rewards or other services provided pursuant to this Agreement. Each Party will provide the other Party with any required resale exemption certificates, multiple points of use certificates, treaty certification and any other exemption information reasonably requested by the other Party.

 

On request, the Parties will provide reasonable assistance to each other if either Party has reasonable grounds to challenge the validity of any tax imposed on it due to this Agreement.

 

If Member is a registrant with the Canada Revenue Agency and/or Revenue Quebec for purposes of the collection and remittance of sales tax in connection with the provision of goods and services in Canada, Member shall include its GST/HST and/or QST registration number on all duly issued invoices under this Agreement.

 

Where applicable, Member will identify the portion of the Quaffed Rewards, services and the fees applicable therein delivered by non-residents in Canada and will indemnify CanRad from any amount, interest or penalties assessed by the Canada Revenue Agency against CanRad based on a claim by the Canada Revenue Agency resulting from an incorrect statement in any invoice with respect to the location of the services. If any amount payable to Member is subject to withholding taxes imposed by and payable under Applicable Law, CanRad shall withhold and remit such amount to the applicable taxing authority, unless Member provides CanRad with an exemption or waiver certificate before Member invoices CanRad. CanRad will provide Member with written confirmation of any such withholding and remittance as and to the extent prescribed under Applicable Law.

 

  • CanRad shall have no liability or responsibility for withholding or remitting any income, payroll, or other federal or provincial taxes, including employment insurance remittances, Canada Pension Plan contributions, or employer health tax or worker's compensation insurance premiums for the Member or the Member’s personnel. The Member is responsible for these withholding, remitting and registration obligations, and shall indemnify CanRad from and against any order, penalty, interest, taxes or contributions that may be assessed against CanRad due to the failure or delay of the Member to make any such withholdings, remittances or registration, or to file any information required by any law and any and all costs incurred by CanRad and associated with any such failures.

 

  1. Ownership. CanRad is, and will remain, the owner of the Quaffed System, Quaffed Network, Quaffed Data, any aggregate data based on Member Data that does not contain personally identifiable or Member specific information, Usage Information (as defined below), all Deliverables and any other data as may be collected through the Quaffed Network, any modifications, improvements or derivative works of the foregoing (including as may incorporate Feedback, as defined below), and all patents, copyrights, trademarks, service marks, trade secrets and other proprietary or intellectual property rights, whether registered, unregistered, known or unknown, associated with any of the foregoing (“Quaffed Technology”). Nothing herein limits CanRad’s use of the Quaffed Technology in any manner. Member will take such actions as CanRad may reasonably request to confirm CanRad’s ownership of the Quaffed Technology. Except as expressly provided in this Agreement, no right, title or interest therein or thereto will be transferred to Member hereunder, irrespective of any use of the words “purchase”, “sale” or any similar terms. Member, from time to time, may submit comments, information, questions, data, ideas, description of processes, or other information to CanRad (“Feedback”). CanRad may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. Member further agrees that CanRad may collect usage and technical information regarding Member’s use of the Quaffed System, including without limitation Member’s IP address and approximate geographic location, hardware and device information (e.g. carrier, operating system and type) and records regarding features of the Quaffed System used and session length (“Usage Information”) and may use Usage Information for any lawful business purpose.

 

  1. Term; Termination.

 

  • Term. The term of this Agreement commences on the Effective Date and, unless terminated earlier as expressly provided herein, shall continue until the end of all Salon Term(s) (as defined below) (the “Term”). Each Salon shall be subject to this Agreement beginning on the date a Salon is subject to an Order until the date that is twelve (12) months after the date the Quaffed System is setup at such Salon, unless such Order states a different subscription term which then shall apply (each, a “Salon Initial Term”). Upon the expiration of the applicable Salon Initial Term, the Agreement (and each Order) shall automatically renew with respect to the applicable Salon for additional one (1) month periods until either party provides the other party with at least thirty (30) days prior written notice of termination of this Agreement or that such Salon shall no longer be subject to this Agreement (each renewal period, a “Salon Renewal Term” and together with the applicable Salon Initial Term, the “Salon Term”).

 

  • Termination. If Member wishes to terminate this Agreement or requests that a Salon no longer be subject to this Agreement without Cause (as defined below) prior to the end of any applicable Salon Initial Term, Member may do so, provided Member provides thirty (30) days prior written notice to CanRad, and Member pays, within such thirty (30) day period, and with respect to each Salon which would no longer be subject to this Agreement, all remaining monthly fees applicable to any remaining portion of any Salon Initial Term applicable to such Salon(s). Either party may terminate this Agreement (or any individual Order) immediately by giving the other party written notice of termination in the event that the other party: (a) becomes insolvent; (b) files a petition in bankruptcy or any other law for the relief of, or relating to, debtors; (c) makes an assignment for the benefit of its creditors; (d) ceases to carry on its business or passes a resolution for its liquidation, dissolution or winding up; or (e) breaches any of its obligations under this Agreement in any material respect, which breach is not cured within thirty (30) days after the breaching party receives written notice of such breach from the non-breaching party (each such event shall constitute “Cause”). Without limiting the foregoing, in the event that Member has failed to pay any amount due hereunder within thirty (30) days following the due date for such payment, CanRad may immediately terminate this Agreement. Notwithstanding anything to the contrary in this Agreement, CanRad may suspend use of Quaffed or terminate this Agreement immediately if CanRad determines such action is necessary in order to comply with Applicable Law or determines that continuing under this Agreement could result in legal or business liability or cause material harm to its products, services, reputation or Users.

 

  • Cancellation Prior to Setup. If Member wishes to cancel or reschedule setup of the Quaffed System, Member must notify CanRad seven (7) days before the agreed upon setup date or will be subject to a non-refundable two hundred and fifty dollar ($250) cancellation fee, in addition to any travel expenses incurred by CanRad for the setup.

 

  • Effect of Termination. Upon the expiration or termination of the Agreement for any reason: (a) the license(s) to the Quaffed System granted by CanRad to Member hereunder will immediately terminate; (b) Member will delete any login and password information for all components of the Quaffed System and if applicable, return all Quaffed Hardware to CanRad in compliance with CanRad’s reasonable instructions (and failure to return Quaffed Hardware will result in assessment of applicable charges pursuant to CanRad’s policies); (c) the rights and obligations of the parties under Sections 3 (Data), 5 (Indemnity by Member), 6 (Payment; inclusive of all subsections), 7 (Ownership), 8.4 (Effect of Termination), 9 (Warranty Disclaimer), 10 (Limitation of Liability), 11 (Confidentiality), 12 (Indemnity by CanRad) and 13 (General) will survive such expiration or termination; and (e) any amounts still due to CanRad shall be immediately due and payable and continue to bear interest in accordance with Section 6.1.

 

  1. Warranty Disclaimer. THE QUAFFED SYSTEM, QUAFFED NETWORK AND ANY DELIVERABLES OR SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CANRAD MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE QUAFFED SYSTEM, THE QUAFFED NETWORK, DELIVERABLES OR SERVICES, AND CANRAD EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE QUAFFED SYSTEM, THE QUAFFED NETWORK AND ALL DELIVERABLES OR SERVICES (INCLUDING WITHOUT LIMITATION THOSE RELATED TO SETUP, CONNECTIVITY AND WIRING) PROVIDED HEREUNDER BY CANRAD OR ANY THIRD PARTY VENDOR SELECTED BY CANRAD, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. CANRAD DOES NOT WARRANT THAT MEMBER’S USE OF THE QUAFFED SYSTEM OR QUAFFED NETWORK WILL BE UNINTERRUPTED OR ERROR-FREE, THAT CANRAD WILL REVIEW THE MEMBER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE MEMBER DATA WITHOUT LOSS. CANRAD SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CANRAD.

 

  1. Limitation of Liability. CANRAD WILL NOT BE LIABLE TO MEMBER FOR (1) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR (2) ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE ARISING OUT OF THIS AGREEMENT. IN NO EVENT WILL CANRAD’S CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY RELATED CAUSE OF ACTION, EXCEED THE TOTAL AMOUNTS PAID BY CANRAD TO MEMBER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE INITIAL CLAIM FOR WHICH DAMAGES ARE RECOVERED HEREUNDER. MEMBER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN SECTION 9 (WARRANTY DISCLAIMER) AND THIS SECTION 10 (LIMITATION OF LIABILITY) WILL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.

 

  1. Confidentiality. Any confidential or proprietary information of either party, whether of a technical, business or other nature, including, but not limited to trade secrets, know-how, technology and information relating to Consumers, business plans, promotional and marketing activities, finances and other business affairs, (collectively, “Confidential Information”) disclosed to the recipient party by the disclosing party in connection with this Agreement will be treated by the recipient party as confidential and proprietary, provided that it is marked at time of disclosure as confidential or proprietary or is of such a nature that a reasonable business person would consider it confidential or proprietary. The terms and conditions of this Agreement (including, without limitation, pricing), the Quaffed Technology, and any performance information regarding the Quaffed System or Quaffed Network are all deemed Confidential Information of CanRad. Unless specifically authorized by the disclosing party or in order to exercise its rights under this Agreement, the recipient party will: (a) not disclose such Confidential Information to any third party (other than as set forth in this Section, below); and (b) otherwise use reasonable precautions to protect such Confidential Information from unauthorized use and disclosure, including, without limitation, all precautions it uses to protect its own Confidential Information of a similar nature. Without limiting the express restrictions in this Agreement, including under Sections 4.1 (Registration and Login Information; Responsibility for Employees) and 2.1.2 (Restrictions), any employee, contractor, agent or advisor given access to any Confidential Information must have a legitimate “need to know” in order to perform a party’s obligations or exercise its rights under this Agreement and the recipient party shall remain responsible for each such person’s compliance with the terms of this Agreement. The obligations set forth in this paragraph will not apply to any information that: (i) was already known to the recipient party, other than under an obligation of confidentiality, at the time of disclosure by the disclosing party; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the recipient party; (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the recipient party in breach of this Agreement; (iv) was disclosed to the recipient party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; or (v) was developed independently by the recipient party without any use of Confidential Information. Notwithstanding the foregoing, the recipient party may make disclosures to the extent required by Law, rule, stock exchange rule, subpoena, governmental proceeding or court order.

 

  1. Indemnity by CanRad. CanRad agrees to (a) defend Member, and its officers, directors, employees, representatives and agents, from and against any and all third party claims alleging that the Quaffed System when used by Member as authorized under this Agreement infringes or misappropriates such third party’s patent, copyright, trademark or other proprietary right and (b) pay all costs and damages awarded against Member or agreed in settlement by CanRad (including court costs and reasonable attorneys’ fees and costs) in relation to such claim, provided that Member (i) promptly notifies CanRad in writing of any such claim (and in any event provides notice in sufficient time for CanRad to respond without prejudice), (ii) promptly tenders to CanRad exclusive control of the defense and any settlement of such claim and (iii) provides reasonable cooperation and assistance to CanRad in the defense or settlement of any such claim. If Member’s use of the Quaffed System is (or in CanRad’s opinion is likely to be) enjoined, if required by settlement or if CanRad determines such actions are reasonably necessary to avoid material liability, CanRad may, in its sole discretion: (x) substitute for the Quaffed System substantially functionally similar programs and documentation; (y) procure for Member the right to continue using the Quaffed System; or if (x) and (y) are not commercially reasonable, (z) terminate this Agreement and refund to Member the fees paid by Member for the portion of the Salon Term(s) which was paid by Member but not rendered by CanRad. The foregoing obligations of CanRad shall not apply: (1) if the Quaffed System is modified by any party other than CanRad; (2) if the Quaffed System is combined with products or processes not provided or authorized by CanRad; (3) to any unauthorized use of the Quaffed System; (4) to any unsupported release of the Quaffed Software or any third party or open source code; or (5) if Member settles or makes any admissions with respect to a claim without CanRad’s prior written consent. THIS SECTION 12 SETS FORTH CANRAD’S AND ITS SUPPLIERS’ SOLE LIABILITY AND MEMBER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

 

 

  • Governing Law. This Agreement will be construed in accordance with the laws of the Province of Ontario and the Federal Laws of Canada without reference to its choice of law provisions and without regard to the United Nations Convention on the International Sale of Goods. The Federal and Provincial courts located in Ontario, Canada will be the exclusive venue for any claim or dispute between the parties or against any agent, employee, successor, or assign of the other, whether related to this Agreement or otherwise and the parties hereby consent to the personal jurisdiction of those courts for such purposes. The prevailing party in any dispute under this Agreement will be entitled to its costs and reasonable attorneys’ fees.

 

  • Force Majeure. CanRad will not be liable to Member in any way whatsoever for any failure or delay in performance of any of its obligations under this Agreement arising out of any event or circumstance beyond the reasonable control of CanRad.

 

  • Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement will be construed to create any joint venture, partnership, franchise, or agency relationship between the Parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way.

 

  • Neither this Agreement nor any rights and/or obligations hereunder (including, without limitation, the licenses granted hereunder) may be assigned, sold, transferred or delegated by Member without the prior written consent of CanRad and any attempt to do so shall be null and void from the beginning. In the event that Member wishes to assign, sell, transfer or delegate (each, “Assign”) this Agreement to another party, Member must request such consent from CanRad at least fourteen (14) days prior to such assignment, sale, transfer or delegation (each, an “Assignment”). No Assignment will relieve Member of its payment obligations incurred prior to the date of the Assignment. For the avoidance doubt, CanRad may Assign (whether by merger, operation of law or otherwise) this Agreement or any or all of its rights and/or obligations hereunder (including, without limitation, the licenses granted hereunder) at its sole discretion. All rights, benefits and protections of CanRad under this Agreement also extend to all CanRad affiliates. CanRad shall be solely responsible for all of its obligations under this Agreement.

 

  • Notices. Except where another notice process is permitted herein (including in Section 13.8 (Changes to Agreement)), all notices required or permitted to be given under this Agreement must be sent to Member at any one of Member’s addresses, facsimile numbers, or email addresses that have been provided to CanRad and to CanRad at 125 Norfinch dr, North York, ON, M3N 1W8, Email: support@quaffed.ca, Attention: CanRad Notices, and will be deemed effectively given: (a) upon delivery when personally delivered against receipt therefor; (b) upon delivery when sent by certified mail, postage prepaid, and return receipt requested; (c) upon transmission when transmitted by facsimile or other electronic transmission; or (d) upon delivery when sent by a nationally recognized overnight service with delivery confirmation.

 

  • No Waiver; Severability. The failure of either party to insist upon or to enforce strict performance of any provision of this Agreement, or to exercise any right or remedy under this Agreement, will not be interpreted or construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance. If any provision of this Agreement shall be judged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

 

  • Headings; Construction. The headings to the clauses, sub-clause and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted the Agreement or any provision thereof.

 

  • Entire Agreement. This Agreement (including, without limitation, Parts 1 and 2), together with all Orders to the extent such Orders cover CanRad products and services with respect to Quaffed and payment instructions provided pursuant to Section 6 (which are incorporated by this reference) sets forth the entire agreement, and supersedes any and all prior agreements, between the parties with respect to the subject matter hereof. No provision of any purchase order or other business form employed by Member will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

 

  • Changes to Agreement. Subject to the specific terms for pricing modifications in Section 6 (Payment) above, CanRad may modify this Agreement from time to time and will provide reasonable notice of such modifications through a Quaffed website, email or other means as determined by CanRad. As specified by CanRad, some modifications may become effective upon the start of the next Salon Renewal Term for each applicable Salon. Alternatively, CanRad may specify that a modification will become effective, following a reasonable notice period, during Member’s then-current Salon Term; in this case, if Member does not agree to the modifications, Member’s exclusive remedy will be to provide CanRad with notice of termination of this Agreement (which notice must be given prior to the effective date of the modification specified by CanRad) and to receive a refund from CanRad of any unused recurring fees prepaid by Member for the terminated period of the then-current Salon Term. Member may be required to click to accept the modified terms in order to continue using the Quaffed System, and in any event continued use of the Quaffed System after the effective date of the modification will constitute Consumer’s acceptance of the modified terms. For new Salons added to this Agreement pursuant to an Order, the version of this Agreement in effect at the time such Order is entered shall apply.

 

  • Third-Party Code. The Quaffed Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.

 

PART 2: MEMBER RESPONSIBILITIES

 

 

MEMBER RESPONSIBILITIES

 

CanRad depends on Member cooperation to enable us to provide the best possible service. To that end, Member specifically agrees to:

 

  • Treat Consumers who book reservations online the same as those Consumers making reservations by phone or walking in.

 

  • Ensure that all Member users of the Quaffed System are adequately trained and use the Quaffed System appropriately. This includes, without limitation, making reservations, making configuration changes, honoring all online reservations, and using the cancel and no-show features carefully. When a party fails to show up for their reservation, designate the reservation as a "no show" in the system. Never “no-show” a party when the Consumer(s) did arrive and attend at the Salon. In any instance where a Member disputes a confirmed reservation, Member must submit any all claims to CanRad prior to the end of the month following receipt of the invoice which references the disputed reservation. CanRad reserves the right to audit Member in the event that there is a dispute arising out of a reservation.

 

  • Make all appointments at each Salon not set aside for walk-ins or preferred Consumers accessible on the Quaffed System.

 

  • Keep the Quaffed System updated to accurately reflect all temporary closures (e.g. holidays or remodeling) or periods when the Salon(s) is/are not accepting reservations for certain time slots made available to Users on the Quaffed Network.

 

  • Be available for staff training on the Quaffed System(s). Member agrees to bring as much of its Salon staff together as it can to make training more efficient and to train new Salon staff as they are hired.

 

  • Ensure connectivity and synchronization of the Quaffed System as requested by CanRad.

 

  • Use the Quaffed System in accordance with any documentation provided by CanRad from time to time. This includes, without limitation, utilizing all provided guidelines, tips, techniques, and other documented resolutions as well as “help” functions within the Quaffed System as initial attempts to resolve problems.

 

  • Member agrees to review all SMS, faxes, emails and mailed materials sent from CanRad regarding management of Member’s account.

 

  • Maintain Salon Connectivity and cooperate with CanRad and ISP staff in efforts to restore Connectivity.

 

  • Not input sensitive Consumer information into the Quaffed System (including, without limitation, credit card data).

 

SUPPORT

 

Member may email support@quaffed.ca for basic functionality support for the Quaffed System. CanRad is unable to guarantee that all errors or issues with the Quaffed System will be resolved.