TekStack Inc. Terms of Service
Last updated: March 29, 2023
These Terms of Service, which include Order Forms, schedules, exhibits, addendums and statements of work (“SOWs”) referred to or linked to or incorporated herein (the “Terms”), create an agreement between the company, organization, legal entity or legal person listed on the Order Form (“Customer”, “You” or “Your”) and TekStack Inc. and its applicable affiliates (“TekStack,” “We,” “Our” or “Us” and terms of similar meaning) (together, “the Parties” or each a “Party”) regarding your access to and use of any TekStack software (“Software”) and receipt of consulting, training, professional and/or other services (collectively, “ Services”). All users must agree to these Terms before using the Software and Services.
You are agreeing to these Terms on behalf of a company and represent that You have the authority to bind that entity and its affiliates, to access and use the Software and receive the Services to these Terms. If You do not agree with the Terms or if You do not have such authority, You must not accept an Order Form (as applicable) and Customer and Users will not be permitted to access, receive and use the Software and Services.
1. Orders, Fees and Payments
a. You may from time to time submit orders for Software and Services in an order form (an “Order Form”) and those terms and conditions are incorporated into these Terms by reference. An Order Form and these Terms will be deemed to be accepted by You by: (i) You signing the Order Form; or (ii) You (or an User) registering for an account to access or use the Software; or (iii) You (or an User) otherwise access or use the Software (the “Order Effective Date”).
b. You will pay Us all fees as set out in an Order Form (the “Fees”). Fees for Software are payable regardless of Your actual usage of the Software.
c. You will be responsible for all applicable taxes or other charges imposed by any governmental authority, relating to: (i) Us providing; or (ii) Your access, receipt and use of the Software and Services. If We are obligated to collect or pay taxes for which You are responsible, You will pay Us the appropriate amount unless You provide Us with a valid tax exemption certificate. We reserve the right to gross up the Fees for the Software and Services in an invoice if a withholding prevents Us from receiving the actual amount specified in an invoice.
d. Any out-of-pocket expenses pre-approved by You and incurred by Us while performing Services will be charged to and payable by You.
e. As You will have access to and use of the Software as of the Order Effective Date, all invoices are due within fifteen (15) days of Your receipt. In all instances, if You do not pay Us on time, We may, after notifying You and waiting for a reasonable period of time, suspend Your access to and use of Software and/or the receipt of Services for non-payment.
f. Any invoice paid via credit card will include an automatic service fee of 3.5% of the invoice total.
g. Declined credit card payments are subject to a $250 reprocessing fee. In the event Your credit card is declined twice within a 12-month period, your billing cycle will automatically be switched to quarterly in-advance and payment for the Services must be received in advance of next service term.
2. Term and Termination
a. These Terms begin to apply on the Order Effective Date and cease at the end of the initial subscription term set out in the Order Form (the “Initial Subscription Term”). At the end of the Subscription Term, these Terms will automatically renew for period of time equal to the Initial Subscription Term (a “Renewal Term”, and together with the Initial Subscription Term, the “Subscription Term”), unless You notify Us in writing at least thirty (30) days before the end of the Initial Subscription Term or a Renewal Term of Your intention to terminate these Terms. Any such termination will be effective on the last day of the Subscription Term and You will pay for the Software and Services until the end of the Subscription Term, regardless of when You provided notice.
b. In the event of a breach of these Terms by either party that remains uncured for twenty (20) business days, the non-breaching party may immediately terminate these Terms.
c. Upon termination of these Terms for any reason whatsoever, You will pay all Fees owing to Us and We will not refund any Fees that You may have already paid to Us.
d. Upon Your written request made within thirty (30) days after the termination of these Terms, so long as You have paid Us all outstanding Fees, We will: (i) deliver to You, as applicable, any Customer Data in Our possession or control; or (ii) make available to You for download a file of Customer Data in a generally available format, as determined by Us, acting reasonably. After such 30-day period, We will have no obligation to maintain or provide any Customer Data and We will, unless legally prohibited, delete or destroy all Customer Data in Our systems or otherwise in Our possession or under Our control. At Your written request, an officer of TekStack will certify the delivery of and/or deletion or destruction of Customer Data following termination.
e. The following provisions will survive any termination or expiration of these Terms: Sections 2.c, 2.d, 2.e, 9 – Confidentiality Obligations, 12 – Warranty and Warranty Disclaimer, 13 – Limitation of Liability, 14 – Ownership and Proprietary Rights, 15 – Indemnification, and 16 – General.
3. Use of the Software
a. As of the Order Effective Date, We grant You a limited, non-exclusive, non-transferable and non-assignable, worldwide right to access and use (and permit Users to access and use) the Software for Your internal business use during the Subscription Term and only as permitted by these Terms.
b. Unless otherwise provided in these Terms, You will not: (i) resell, distribute, or use the Software on a timeshare, outsourced, or service bureau basis; (ii) provide access to the Software to a third party (other than to Users of Your legal affiliate or other agents acting on Your behalf); (iii) modify, reproduce, duplicate, deconstruct, reverse engineer the Software or create derivative works of the Software (unless Your Order Form so indicates; and in which case, the creation and use of such derivative works shall be for Your sole benefit); (iv) use the Software to send (1) unsolicited messages (e.g. “spam”); (2) infringing, obscene, threatening, libelous, or otherwise unlawful or tortious materials ; (3)material containing malicious code; or (4) interfere with or disrupt the integrity or performance of the Software or the data contained therein.
c. Any rights not explicitly granted in these Terms are strictly reserved by Us and You will not use the Software except in the manner as expressly granted herein. We reserve the right to audit, in a reasonable fashion and upon reasonable notice (as necessary), Your usage of the Software to determine Your compliance with these Terms.
d. For mobile use of the Software, You may need to download and install additional software from Us or a third party mobile “app” store or marketplace in which case these Terms also apply to such additional software and mobile “apps” (in addition to any other terms of such “app” store or marketplace).
e. Your use of the Software is subject to limits and restrictions as more specifically set out in an Order Form (e.g. number of Users, storage space, bandwidth etc.).
f. You accept Microsoft’s Customer Agreement as part of the software’s initiation. The current version of the Microsoft Customer Agreement can be viewed at: https://www.microsoft.com/licensing/docs/customeragreement.
a. We may provide You with Services as set out in an Order Form and/or a SOW (or a Change Order to a SOW). A SOW may be required for each project, and may specify, among other things, the purpose and scope of the project, the responsibilities of each party, assumptions, deliverable(s) (if any), applicable fees and payment terms, acceptance test procedures (if any) and any other specific requirements. In some instances, We may not commence providing Services to You unless a SOW has been agreed to by You and Us.
b. We may provide the Services remotely or, subject to section 1.d, at a location of Your choosing.
c. Either You or We may request additions, deletions or amendments to the Services in an Order Form or SOW (“Change”). A Change will be requested in writing signed by an authorized representative of the Party requesting the Change (“Change Request”). We will not have an obligation to perform, and You will not have an obligation to pay for, Services related to any Change unless You and We have agreed to the Change in writing. If You request a Change, We will evaluate the request and, whether You or We requested a Change, We will provide You with a written estimate of the cost, if any, of the requested Change and any additional terms and conditions related to such Change. Upon Your approval of the cost estimate and any such additional terms and conditions, You and We will enter into a change order document amending the applicable SOW (a “Change Order“).
d. If required, you will review and accept or reject Services deliverables with the Evaluation Period. The “Evaluation Period” will be set for each Services engagement: (i) through agreement, in writing, by the TekStack and Customer teams.; (ii) through the execution of a Change Order to modify the previously defined Evaluation Period; or (iii) as five (5) business days following a written request for review sent by Us to You. Should You reject a deliverable, You must identify and communicate the defects to TekStack in writing within the Evaluation Period.
e. Services deliverables will be considered accepted when either of the following conditions are met: (i) written communication is provided by You to Us signaling that the deliverable meets expectations; or (ii) no written communication has been received from You during the Evaluation Period following a written request for review sent by Us to You. In this instance, a second written notice to review the deliverable will be sent by Us to You. If You do not respond in writing within five (5) business days of the second notice, acceptance will be assumed.
f. Services are deemed complete, implied or otherwise, once any one of the following conditions has been met: (i) You have provided acceptance for all deliverables associated with the Services, or for the Services themselves; (ii) You, or Your users, actively use any Software related to the Services for 60 calendar days to capture real-world (non-test) data; or, (ii) You or We terminate the Services in accordance with the provisions of these Terms.
g. While delivering Services to You, it may become necessary to place the Services “On Hold”. When Services are On Hold, all communication related to the Services is paused except for communication between Your lead resource and Our lead resource regarding when to “Resume” the Services. Services can be placed On Hold: (i) through mutual agreement, in writing, by You and Us; or (ii) if You do not respond within ten (10) business days to written notice from Us that the Services will be placed On Hold as a result of material delays originating from You. On Hold Services can be “Resumed” through mutual written agreement. We will outline any changes to the estimated schedule and fees that have resulted from the Services being placed On Hold and issue a Change Order to Resume the Services, if applicable.
5. Our Responsibilities
a. We will, in compliance with applicable laws (including privacy and/or data protection laws): (i) use commercially reasonable efforts to provide You (and Your Users) with access and use of the Software; (ii) perform the Services in a professional and workmanlike manner in accordance with applicable professional standards; (iii) provide You with support per our Standard Software Support Program.
b. We will not be responsible for any compromise, loss, delay, alteration, or interception of Customer Data during the transmission of any data whatsoever across the Internet or mobile telecommunications networks.
6. Your Responsibilities
a. In exchange for Us providing You with access to and use of the Software and the Services, You will, in compliance with all applicable laws: (i) be responsible for User’s compliance with these terms; (ii) be responsible for procuring and maintaining the Internet and mobile telecommunications network connections that connect Your Users and network to the Software.
7. Standard Software Support Program
a. Our Standard Software Support Program includes Technical Support, End User Support and Automatic Production Upgrades.
b. Technical Support is the reporting and resolution of Software Errors. A Software Error is Software behavior that does not function in conformance with the published specifications of the Software. Technical support does not extend to technical issues solely implicating Your computer systems, servers and devices, or any software other than Our Software or Microsoft software resold by Us. Technical Support is also not provided for networks or communication or devices not owned, controlled or managed by Us or Microsoft that are used to access our software, or for recovery of lost data due to user error. However, Technical Support does extend to technical issues that relate to interoperability or compatibility between Our Software and computer systems, devices, third party software, or network/communication systems configured to Our specifications.
c. End User Support is answering questions about Our Software.
d. Change Requests (defined as modifications to the behavior of Our Software and Services) are not covered by our Standard Software Support Program. You can make suggestions and We will prioritize new features and modifications as We best determine.
e. Work Orders (defined as re-training, CRM administration tasks, data load or migration, new integrations, or other custom projects) are not covered by our Standard Software Support Program.
f. We regularly release new versions of Our Software to incorporate new features and fix Software Errors. New versions will be deployed to your production environment automatically as they become available. These Automatic Production Updates are included with Our Standard Software Support Program. You will always experience the benefits of new features and functionality.
g. We use three (3) severity levels to classify Software Errors. You must communicate the severity level when you report a Software Error. We reserve the right to adjust the severity level of a Software Error based on our own assessment of the situation. The severity levels are: (i) Critical, a Software Error that disrupts a key business process and no known workaround is available. (ii) Normal, a Software Error that disrupts a business process, but the process can continue with workarounds, or it is not a key process. (iii) Low, a Software Error with little to no impact on the ability to use the Software for its intended purpose or a Software Error in a non-production environment.
h. Support Business Hours are 9am to 6pm ET, Monday to Friday, excluding Canadian statutory holidays.
i. Response Time is the number of elapsed Support Business Hours between You creating a support case for Technical or End User Support and Our team starting to work on the case. A response may take the form of (i) alerting you that the support team has received your case; or (ii) a request from the support team for further information.
j. Our Standard Software Support Program includes the following Response Times and Effort
|Response Time||Response Effort|
|Technical Support – Critical||1 Support Business Hours||Continuous best efforts|
|Technical Support – Normal||6 Support Business Hours||Commercially reasonable effort during Support Business Hours|
|Technical Support – Low||12 Support Business Hours||Commercially reasonable effort during Support Business Hours|
|End User Support||12 Support Business Hours||Commercially reasonable effort during Support Business Hours|
k. Our Standard Software Support Program is available to two (2) authorized Customer contacts. Authorized Customer contacts may be changed a maximum of three (3) times in a twelve (12) month period, unless the change is the result of person leaving the Customer’s organization. Technical and End User Support cases opened by contacts other than the authorized Customer contacts will not be answered and will be referred to the authorized Customer contacts.
l. In Our Standard Software Support Program, Technical and End User Support are only available through the TekStack portal, available at https://support.tekstack.com.
8. Changes to the Terms of Service
a. We may update these Terms from time to time. If You do not agree with the changes You can cancel the Services, stop using the Software without further obligation, except for the payment of any amount due for any outstanding Services and terminate these Terms. Any changes or modifications to these Terms will be effective immediately upon posting of the revisions on the Site, and Your continued use of the Services and Software after such time will constitute Your acceptance of such changes or modifications. Any such modifications will not materially increase Your risk or financial obligations. You should from time to time review the Terms to understand the terms and conditions that apply to Your use of the Services and Software. The Terms will always show the ‘Last Updated’ date at the top.
b. We may, at Our discretion, enhance or modify the Software from time to time and We will provide You with reasonable notice of any material modifications at the email address You provide in Your Order Form.
c. At the end of your Initial Subscription Term, and for each subsequent Renewal Term, TekStack will renew your existing Software and Services at the lessor of: (i) the prices during the previous Subscription Term plus an increase of the greater of 2.5% or the 12-month percentage change in the Consumer Price Index for All Urban Consumers for All Items for the 12 months prior to your renewal date as published by the United States Department of Labor, Bureau of Labor Statistics, or (ii) the current price for the same Software and Services as published on the TekStack website.
9. Confidentiality Obligations
a. Each party may use Confidential Information only for the purposes of these Terms and will not disclose to any third party any Confidential Information, without the prior written consent of the other party. For the purposes of these Terms, “Confidential Information” means all technical, scientific, marketing, business, financial and commercial information or data whether communicated in writing or orally, which is provided by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) as a consequence of these Terms. The Receiving Party will be liable to the Disclosing Party for any breaches of this by its employees, agents or third party service providers who obtain Confidential Information of the Disclosing Party from the Receiving Party. Confidential Information will not include information that: (i) was already known by or in the possession of the Receiving Party at the time of disclosure, other than through an obligation of confidentiality; (ii) was at the time of disclosure or thereafter became publicly available or known to the public or otherwise part of the public domain without breach of these Terms by the Receiving Party; (iii) was subsequently disclosed to the Receiving Party by a third person who had the right to make such disclosure; and (iv) is developed by the Receiving Party independently of any Confidential Information or other information received from the Disclosing Party.
10. Privacy and Data Protection
a. We will not access Your Customer Data, except: (i) where instructed or permitted by You; or (ii) as required by law or to exercise or protect Our legal rights.
b. We will collect, use and process Customer Data only in accordance with Your instructions and to the extent reasonably required to provide the Software and Services.
c. You agree that We may contact You via e-mail or otherwise with information relevant to Your use of the Services and Your payment obligations.
11. Customer Data
a. We make no claim to Your trade names, logos and other trademarks or service marks (“Marks”) and Customer Data and We will not sell Your Customer Data to third parties.
b. You are solely responsible for Your Customer Data. We are not liable to You, Your Users or Your customers for any loss or damages arising from any Customer Data. “Customer Data” means all visual, written or audible communications, files, data documents, videos, recordings, or any other material displayed, posted, uploaded, stored, exchanged or transmitted on or through Your use of the Software.
c. You grant Us a world-wide, royalty-free, sub-licensable licence to use, modify, reproduce and distribute the Customer Data, only as reasonably required to provide access to and use of the Software (e.g., We may encrypt Your Customer Data which may involve use, reproduction and modification of Your Customer Data). You warrant that You have sufficient, lawful non-infringing rights to the Customer Data and to grant the license contained in this Section.
12. Warranty and Warranty Disclaimer
a. Although We will make Our best effort to deliver functioning Software and an acceptable Service, We do not warrant that the Software, the Services or any content provided will be error free or satisfy all Your requirements. We will use commercially reasonable efforts to correct any error, in a timely fashion, that may be discovered by You or Us.
b. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 11 – WARRANTY AND WARRANTY DISCLAIMER, TO THE EXTENT ALLOWED BY APPLICABLE LAW, WE (i) EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, CONDITION OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND (ii) MAKE NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES OR THE SITES, OR THAT THE SERVICES WILL MEET ANY OF YOUR REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.
13. Limitation of Liability
a. Neither Party will be liable to the other in connection with any single event or series of related events for any punitive, exemplary, special, incidental, indirect or consequential loss or damage including, but not limited to, loss of profits, loss of revenue, failure to realize expected savings, loss of data or other commercial or economic loss of any kind even if either party has been advised of the possibility of these losses or damages, and regardless of the form of action, whether in contract or in tort, or based upon any other legal or equitable theory.
b. OUR MAXIMUM AGGREGATE LIABILITY TO YOU RELATED TO OR IN CONNECTION WITH THESE TERMS WILL BE LIMITED TO THE TOTAL RECURRING ANNUAL FEES PAID BY YOU TO US UNDER THESE TERMS FOR THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE CLAIM. THIS FOREGOING LIMITATION OF LIABILITY IS IN THE AGGREGATE AND NOT PER INCIDENT.
c. THE LIMITATIONS IN SECTIONS 12(a) AND 12(b) DO NOT APPLY TO A BREACH OF SECTION 8 – CONFIDENTIALITY OBLIGATIONS, OR IN RELATION TO ANY INDEMNITY OBLIGATION SET FORTH IN THESE TERMS.
d. You acknowledge that We have set Our Fees and entered into these Terms in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between You and Us.
14. Ownership and Proprietary Rights
a. We and Our licensors own all intellectual property rights to the Software, Services and associated documentation. This ownership extends to all copies and portions of these items, and all improvements, enhancements, modifications and derivative works to these items and any work product arising out of the Services. Our ownership does not extend to Your Customer Data or Your Confidential Information. Your rights to use the Software are limited to those rights expressly granted by these Terms. You receive no other rights to the Software, any associated documentation, or Services or any related intellectual property rights in the Software.
b. You grant to Us a worldwide, royalty-free, non-exclusive, perpetual, irrevocable license to: (i) use or transfer any feedback You give Us in relation to the Software for any purpose; and (ii) use, copy, store and display Customer Data on an aggregated and anonymous basis only for the purposes of improving or developing enhancements to the Software and to offer new products and services that may relate to Your Customer Data.
c. We may use Your Marks to personalize the Software for Your use. Nothing in these Terms transfers to Us any rights or ownership in or to Your Marks.
a. We will defend, indemnify and hold You, Users, Your officers, directors and employees (the “Customer Indemnified Parties”) harmless from and against any and all third party claims, demands, suits, or proceedings (“Claim”) for damages, costs, liabilities, expenses, attorney’s fees, equitable relief or similar relief made or brought against the Customer Indemnified Party by a third party arising out of or relating to the actual or alleged infringement or misappropriation of such third party’s intellectual property rights by Us, by Our provision of the Software or Services, or by Your authorized use of the Software or Services; provided that the Customer Indemnified Party: (i) promptly gives Us written notice of the Claim such that We are not materially prejudiced by the timing of such notice; (ii) gives Us sole control of the defense and settlement of the Claim (provided that We may not settle or defend any Claim unless it releases the Customer Indemnified Party of all liability); and (iii) provides to Us all reasonable assistance, at Our expense. No settlement will require any payment by the Customer Indemnified Party without such Customer Indemnified Party’s written consent. The Customer Indemnified Party may monitor, at its own expense, such defense and any settlement discussions directly or through counsel of its choice.
b. We will not have any liability for any claim of infringement or misappropriation of a third party’s intellectual property caused by: (i) Your misuse or modification of the Software or any Services; (ii) Your failure to use corrections, enhancements or updates made available to You by Us; or (iii) information, direction, specification, or materials provided by You or any third party on Your behalf.
c. If the Software or any deliverable item resulting from Our performance of the Services (the “Alleged Infringing Item”) is, or in Our opinion is likely to be, held to constitute an infringement of a valid third-party right pursuant to this Section, We will at Our expense and option either: (i) procure for You the right to continue using the Alleged Infringing Item; (ii) replace the Alleged Infringing Item with a non-infringing equivalent, modify it to make it non-infringing; or (iii) terminate Your access, receipt and/or use of the Alleged Infringing Item and refund to You any pre-paid fees in relation to the Alleged Infringing Item less an amount for Your use of the Alleged Infringing Item up to the time of return. THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR INFRINGEMENT.
d. You will indemnify, defend and hold Us and Our directors and employees harmless from and against any Claim for damages, costs, liabilities, expenses, attorney’s fees, equitable relief or similar relief made or brought against Us by a third party alleging that the Customer Data that You disclose to Us infringes or misappropriates the rights of a third party or violates applicable law; provided that We: (i) promptly give You written notice of the Claim such that You are not materially prejudiced by the timing of such notice; (ii) give You sole control of the defense and settlement of the Claim (provided that You may not settle or defend any Claim unless it releases the Us of all liability); and (iii) provide to You all reasonable assistance, at Your expense. No settlement will require any payment by Us without such Our written consent. We may monitor, at Our own expense, such defense and any settlement discussions directly or through counsel of Our choice.
a. These Terms will supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation, request for proposal or other document issued by You. This Terms, together with any other documents referenced herein (including for certainty, the Order Form), constitute the entire agreement between the You and Us pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between You and Us. Except as expressly provided in this Agreement, there are no representations, warranties, conditions other agreements or acknowledgements, whether direct or collateral, express or implied, that form part of or affect these Terms.
b. Your or Our failure to enforce any provision of these Terms will not be construed as a waiver of any provision or right. Waiver by either You or Us of a breach of any provision of these Terms or the failure by either You or Us to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
c. In the event that a portion of these Terms are held to be unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect.
d. We may delegate the performance of any or all of Our obligations hereunder to third parties, provided that We will remain liable for performance hereunder. You may not assign these Terms or Your rights and responsibilities hereunder without Our prior written consent unless the assignee is an acquiring party, acquired or merged party, majority owner, a subsidiary or affiliate party including by purchase, merger or operation of law. Subject to the foregoing, these Terms will be binding upon the parties’ respective successors and permitted assigns.
e. All notices hereunder shall be in writing and shall be deemed to have been given upon the day of personal delivery, the third business day after mailing, or the first business day after sending by email. Notice to Us shall be to: email@example.com. Notices to You shall be to the mailing and email address You provide in Your Order Form.
f. You agree that We may refer to You by trade name and marks, and may briefly describe Your business and the nature of these Terms, in Our marketing materials and web site.
g. The laws of the Province of Ontario (without regard to its conflict of laws provisions) and all laws of Canada applicable in the Province of Ontario will govern these Terms and all matters arising out of or relating to these Terms. Any legal action or proceeding relating to these Terms will be instituted in the courts of the Province of Ontario. However; if You are located in: (i) the United States of America, the laws of the State of Nevada (without regard to its conflict of laws provisions) and any laws of the United States of America applicable in the State of Delaware will govern these Terms and all matters arising out of or relating to these Terms and any legal action or proceeding relating to these Terms will be instituted in the courts of the State of Delaware; or (ii) the United Kingdom, Europe, Asia, the Middle East or Oceania, the laws of England (without regard to its conflict of laws provisions) will govern these Terms and all matters arising out of or relating to these Terms and any legal action or proceeding relating to these Terms will be instituted in the courts of England.
h. You and We are independent entities. Nothing in these Terms will be construed as creating a partnership, joint venture or agency relationship between You and Us.
i. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under these Terms due to any cause beyond its reasonable control, including, without limitation, act of war, acts of God, earthquake, flood, pandemic, embargo, riot, sabotage, labor shortage or dispute, or governmental act, computer attacks or malicious acts, such as attacks on or through the Internet, or attacks against any Internet service provider, telecommunications facility or hosting facility.