It applies to the Table Pay service provided by Northern POS Inc. (“Northern”) to the Subscriber. Subscriber means the person who accepts, or whose representative accepts on the Subscriber’s behalf, the terms of this Agreement upon downloading the app to be used for the Table Pay service. By clicking on the “I AGREE” button that appears at the end of this Subscriber Agreement, the individual doing so acknowledges to Northern that he/she is authorized to cause the Subscriberto be bound by it.
1.1 Northern operates and makes available Table Pay, a semi-integrated middleware software or mobile app that manages restaurant table availability and serves as a bridge to convey information between various restaurant softwaremanagement systems and payment processors and/or payment terminals. Specifically, Table Pay creates a secure channel to permit the transmission of information between systems, without having access to, or allowing for the storage of, financial or personal information within the app. The services provided by Northern to allow Subscriber to access and use Table Pay for the purposes specified in this Agreement and any ancillary services provided by Northern are the “Service”.
1.2 The Subscriber may cancel the Service bygiving Northern at least 15days priorwritten notice of the cancellation.
2.1 The Subscriber requeststhe Service by accepting the terms of this Agreement and Northern will accept the request by commencing to providethe Service to the Subscriber.
2.2 When providing information to Northern, the Subscriber will ensure that it is accurate, and the Subscriber will promptly update any information previously provided to Northern in relation to the Service should there be any change to that information.
3.1 Northern will provide the Service to the Subscriber in accordance with the terms and conditions of this Agreement, and Northern warrants that the Service provided will substantially comply with its description found at the following link: www.northernpos.com
4.1 "Representatives” means, in the case of Northern, its directors, officers, employees, agents, consultants or subcontractors (including service providers) as well as the directors, officers, employees or agents of any subcontractor, of each such party.
4.2 "Representatives” means, in the case of the Subscriber, any End Users.
4.3 Any individual who accesses or uses the Service on behalf of the Subscriber is an “End User”. The Subscriber isresponsible for causing End Users to comply with the terms and conditions of this Agreement, and a breach of this Agreement by an End User is a breach of this Agreement bythe Subscriber.
4.4 The Subscriber will not permit any persons other than its authorized End Users to access or use the Service.
5.1 "Subscriber Content" means all materials, information or data that the Subscriber (including the Subscriber’s End Users) upload, store, transmit, receive or process in connection with the Service. The Subscriber grants to Northern and its Representatives the right to use, reproduce, transmit and delete (as applicable) the Subscriber Content for the purpose of enabling Northern to fulfil any obligation or exercise any right under the Agreement.
5.2 Northern is not obliged to monitor the Subscriber Content, but Northern may monitor the Subscriber Content when required by law or upon a reasonable belief that either the Subscriber or an End User is breaching or has breached the Agreement.
6.1 The “Contact” for Northern with respect to any matters relating to this Agreement is identified at the following:www.northernpos.com.
7.1 For the sole purpose of enabling Northern to provide the Service, including for purposes of any support services that Northern may provide from time to time,the Subscriber will provide Northern with remote access to any device identified by the Subscriber as being used to receive the Service.
8.1 Subscriber and its End Users will comply with Northern’s Acceptable Use Policy available at www.northernpos.com
8.2 Northern may revise its Acceptable Use Policy, from time to time, in its sole discretion, and the Subscriber agrees to abide by it as amended. When Northern changes the Acceptable Use Policy, Northern will post the updated version at www.northernpos.com at least 30 days prior to the date on which the new version becomes effective. As well, Northern may but is not required to give the Subscriber written notice of any such changes.
8.3 CONTINUED USE OF THE SERVICE CONSTITUTES ACCEPTANCE BY THE SUBSCRIBER OF SUCH CHANGES.
8.4 If the Subscriber (or any of the Subscriber’s End Users) violate the Acceptable Use Policy or any law, it is a material breach of this Agreement and Northern may restrict, suspend or terminate the Service, upon written notice, without an opportunity to cure notwithstanding sections 12 and 18. When exercising its rights under this section, Northern will use reasonable efforts to respond in a manner proportional to the severity of the violation.
9.1 Northern will design, implement and manage the technology infrastructure that Northern operates and uses to provide the Service in a manner consistent with reasonable network management and information security practices.
10.1 Confidential Information
(a) “Confidential Information” means, in the case of any information provided by either party to the other,any and all information and materials, which: (i) are designated in writing, as confidential at the time of disclosure, or (ii) if disclosed orally or visually, are designated as confidential at the time of disclosure, or (iii) a reasonable person, having regard to the circumstances and the information, would regard as confidential.
(b) Unless it is also Personal Information (as defined below), the Confidential Information of a party does not include information which:
(i) is or at any time is placed in the public domain by the party granting access to or disclosing that Confidential Information;
(ii) at the time when it is disclosed or access is granted to the other party, is known to the other party (as substantiated by cogent and reliable written evidence in that party’s possession) free of any restrictions;
(iii) is independently developed by the other party through individuals who have not had either direct or indirect access to the party’s Confidential Information; and
(iv) is disclosed without any restrictions to the other party by a third party who had a right to make such disclosure.
10.2 Personal Information
(a) “Personal Information” means any personal information which is required to be protected pursuant to any laws, regulations or judicial decisions applicable in the province or territory of Canada in which the Subscriber is located as are in effect at this time or may be in effect during the term of this Agreement (“Privacy Laws”). Personal Information is a subset of Confidential Information.
(b) Each party agrees to comply with all Privacy Laws to which it is subject.
(c) When the Serviceis used by the Subscriber in conjunction with Personal Information,
(i) The Subscriber agrees to obtain any necessary consent prior to using the Service in conjunction with an individual’s Personal Information and provide copies of those consents to Northern upon request; and
(ii) If any person to whom that Personal Information relates formally raises any complaint relating to the use of the Service bythe Subscriber in conjunction with his or her Personal Information, Northern will provide reasonable assistance to investigate and respond to that complaint.
(d) A copy of Northern’s Privacy Notice may be found at: http://www.northernpos.com/privacy/
10.3 With respect to a party’s Confidential Information, the other party granted access to or who receives that Confidential Information will:
(a) use that Confidential Information onlyin accordance with the Agreement and only for the purpose of fulfilling its obligations and exercising its rights under the Agreement;
(b) use the same degree of care to protect that Confidential Information as the party would use to protect its own Confidential Information of a like nature and in any event, use a standard no less than a reasonable degree of care;
(c) permit access to or disclosure of that Confidential Information only to its Representatives who have a need to know and are bound by a written contract to keep the Confidential Information of third parties confidential, at least to the same extent as set forth in this Agreement; and
(d) notify the party that granted access to or disclosed that ConfidentialInformation immediately upon becoming aware of any unauthorized access to, us of, or disclosure of that Confidential Information.
10.4 If either party has any of the other party’s Confidential Information in its custody or control when the Agreement is terminated, the party holding that information will continue to safeguard it until the information is returned or destroyed in a reasonable manner that reflects its sensitivity.You acknowledge that Northern may retain any backup media produced in conjunction with the Service until such time as they are scheduled to be destroyed in a manner consistent with Northern’sinformation management policies and procedures with respect to the retention of back-ups.
10.5 Neither party will be liable for disclosing the other party’s Confidential Information if a law of any Canadian province or territory or a law of Canada, which is applicable to that party, requires that disclosure, provided that the party disclosing the Confidential Information, to the extent permitted by law, notifies the other party of any such requirement as soon as legally permissible, so that the other party may seek a protective order or other relief.
10.6 Each party agrees that the unauthorized access, use or disclosure of the other party’s Confidential Information will cause irreparable injury to the other party, and that the other party is entitled to seek injunctive and other equitable relief, as a matter of right.
10.7 ALL CONFIDENTIAL INFORMATION PROVIDED BY NORTHERN IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND.
11.1 Northern does not transfer any intellectual property rights to the Subscriber, and subject to section 11.2, the Subscriber does not transfer any intellectual property rights to Northern.
11.2 From time to time, Subscriber (including its End Users) may make suggestions, comments or recommendations relating to the Service or related software (“Feedback”). By providing any Feedback to Northern, Subscriber: (i) agrees that the Feedback is not Subscriber’s Confidential Information; and (ii) assigns all right, title and interest, including all intellectual property rights, in and to the Feedback and any works derived from the Feedback to Northern.
12.1 This Agreement will commence as of the first day on which Northern begins providing the Service to the Subscriber and will continue until terminated pursuant to any termination provision set out in this Agreement.
12.2 The Subscriber may terminate this Agreement bycancelling (in accordance with section 1.2) the subscription to the Service.
12.3 Northern may terminate this Agreement at any time (with or without cause) by giving written notice of the termination to the Subscriber. The effective date of the termination will be set out in the notice and will be at least 15days after the date on which the notice is sent to the Subscriber. However, in the case of any material breach by the Subscriber or any of the Subscriber’s End Users of the terms and conditions of this Agreement or of the Acceptable Use Policy, Northern may elect to terminate this Agreement on immediate written notice tothe Subscriber.
12.4 For a period of 15 days following any date on which Northern issues to the Subscriber a notice of any change to its Acceptable Use Policy, if that change is unacceptable, the Subscriber may cancel the Service. Continued use of the Service following the end of the notice period indicates that the Subscriber agrees to the change.
12.5 Those sections which by their nature should survive the termination or expiration of this Agreement will survive termination or expiration (including but not limited to sections 10, 11, 12, 13, 14, 15, 16, 17, 19 and 20) and they will remain in full force and effect.
13.1 The fees for the Table Pay service will be set out in the description provided at the time that the Subscriber request that service. The fees applicable to any additional services to be provided to the Subscriber will be agreed in writing prior to the additional services being provided. The Subscriber agrees to pay all fees applicable to the Service. The amounts payable for the Service may be adjusted by Northern on fifteen (15) days’ written notice provided to the Subscriber from time to time.
14.1 THE SUBSCRIBERAGREES THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
14.2 NORTHERN EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS WITH RESPECT TO OR ARISING FROM THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, PAST OR PRESENT, STATUTORY OR OTHERWISE, INCLUDING, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OPERATION OR ACCURACY. WITHOUT LIMITING THE FOREGOING, THE SUBSCRIBER ACKNOWLEDGES THAT NORTHERN IS NOT RESPONSIBLE FOR ANY DAMAGES ARISING FROM ANY FAILURE OR DEFUALT IN ANY PRODUCTS OR SERVICES PROVIDED BY ANY OTHER SUPPLIERWITH WHICH THE SERVICE MAY BE USED FROM TIME TO TIME. THE SUBSCRIBER ACKNOWLEDGES THAT UPON ANY CHANGES BEING MADE TO ANY OTHER PRODUCTS OR SERVICES USED IN CONJUNCTION WITH THE SERVICE, THE INTEGRATION OF THAT PRODUCT OR SERVICE WITH THE SERVICE PROVIDED UNDER THIS AGREEMENT MAY BE COMPROMISED, AND THE SUBSCRIBER MAY BE REQUIRED TO MAKE ARRANGEMENTS FOR ADDITIONAL SERVICES TO BE PROVIDED BY NORTHERN.
15.1 Northern will not be liable for any failure by Northern to provide the Service caused in whole or in part by any failure bythe Subscriber to comply with any provision of the Agreement.
15.2 Northern will not be liable for any failure to provide the Service caused in whole or in part by the failure of any devices or telecommunications services used by Subscriber to connect to the Service.
15.3 NORTHERN (INCLUDING ITS REPRESENTATIVES) WILL NOT BE LIABLE TO THE SUBSCRIBERIN ANY WAY WHATSOEVER, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCURRED BYTHE SUBSCRIBER. THIS EXCLUSION WILL APPLY WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, OR WHETHER NORTHERN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.4 NORTHERN’S LIABILITY FOR ANY CLAIM, ACTION OR DEMAND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED BY THE SUBSCRIBERTHAT ARE CAUSED BY A BREACH OF THIS AGREEMENT BY NORTHERN.
15.5 IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF NORTHERN (INCLUDING ITS REPRESENTATIVES) TO THE SUBSCRIBER, FOR ANY CLAIM, ACTION, DEMAND OR OTHER LIABILITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED $100.
15.6 WHILE NORTHERN USES REASONABLE EFFORTS TO PREVENT THE INCLUSION OF VIRUSES OR OTHER HARMFUL CODE IN ANY CODE OR NORTHERN MATERIALS THAT NORTHERN PROVIDES OR MAKES AVAILABLE TO THE SUBSCRIBER, NORTHERN CANNOT GUARANTEE THAT SUCH MATERIALS WILL BE FREE OF VIRUSES OR HARMFUL CODE. THE SUBSCRIBERUSES SUCH MATERIALS AT ITS OWN RISK.
16.1 The Subscriber will indemnify and hold harmless Northern (including its Representatives) and its successors and assigns from any and all claims, suits, losses, damages and expenses (including legal fees and expenses) incurred in connection with any claims, demands and other liabilities asserted against any of them as a result of or relating to: (i) the acts or omissions of the Subscriber relating to or arising from the Subscriber’s (including its End Users’) use of the Service; or (ii) any inaccuracies, misrepresentations or material omissions in the information or materials provided by the Subscriber to Northern.
16.2 Neither the Subscriber nor Northern may settle any claim in any manner which imposes any liability or other obligation on the other, without the prior written consent of the other.
17.1 Northern or the Subscriber may raise a dispute relating to or arising from the Agreement by giving the other party written notice of the dispute. Within thirty (30) days of the day that notice is received by the other party, at least one call will be scheduled between the Subscriber and a representative of Northern, to attempt to resolve the dispute. If they fail to resolve the dispute within the thirty (30) day period, either Northern or the Subscriber may refer the dispute to arbitration. The arbitration will be in accordance with the provisions of the Arbitration Act, 1991, S.O. 1991, Chapter 17 (Ontario), as amended from time to time. The arbitration will: (i) be before a single arbitrator appointed in accordance with the Arbitration Act unless Northern and the Subscriber agree in writing on the arbitrator; (ii) take place in Toronto, Ontario at a time, date and place specified by the arbitrator unless otherwise agreed in writing by Northern and the Subscriber; (iii) be final and binding and may be enforced in the same manner as a judgment or order to the same effect, and no appeal will lie therefrom except on questions of law or the jurisdiction of the arbitration; and (iv) be governed in its procedure and substance by the laws applicable in the Province of Ontario. For clarification, the provisions of this section 18 will not limit or restrict the right of either party to seek injunctive relief or to bring any action in any court of law with respect to any dispute, controversy or claim relating to the improper use or misappropriation of intellectual property rights or breach of confidentiality or breach of privacy.
18.1 Northern may revise the Agreement, from time to time, in its sole discretion. When Northern changes the Agreement, Northern will post the updated version of the Agreement at www.northernpos.comand will give the Subscriber written notice of any such changes.
18.2 CONTINUED USE OF THE SERVICE AFTER NORTHERN AMENDS THE AGREEMENT CONSTITUTES ACCEPTANCE OF THE AMENDMENT. If the Subscriber does not agree with the revised Agreement without qualification, the Subscriber must cancel the Service in accordance with Section 1.2.
Northern will provide notices to the Subscriber by sending an email to the email address provided by the Subscriber to Northern upon the Subscriber’s acceptance of the Agreement, as updated by the Subscriber from time to time in accordance with section 2.2. The Subscriber will give notice to Northern by sending an email to the Contact person identified in Section 6.1 above.
20.1 The Subscriber agrees to comply with all laws, regulations or judicial decisions applicable to the Subscriber as are in effect at this time or may be in effect during the term of this Agreement.
20.2 Northern and the Subscriber are and will be considered independent contractors. Neither party will represent, in any manner, to any third party that it is an agent, employee, partner, or joint-venturer of the other.
20.3 The parties expressly request that this agreement as well as documents relating thereto be drawn up in English. Les parties ont expressément exigé que cette convention ainsi que tous les documents s'y rattachant soient rédigés en anglais.
20.4 The Agreement constitutes the complete agreement between Northern and the Subscriber with respect to the provision of the Service to the Subscriber by Northern. It replaces all prior or contemporaneous discussions, negotiations and agreements regarding the Service. For clarification, Northern may offer services other than pursuant to this Agreement. This Agreement will apply to any additional services only to the extent that the parties agree, pursuant to an amendment to this Agreement or to the subscription form, that the additional services will be governed by this Agreement.
20.5 Except as expressly set out in this Agreement, the terms and conditions of this Agreement may only be amended by the written agreement of Northern and the Subscriber.
20.6 No waiver of any part of this Agreement will be deemed to be a waiver of any other provision. No term of this Agreement will be deemed to be waived by reason of any previous failure to enforce it. No term of this Agreement may be waived except in a writing signed by the party waiving enforcement.
20.7 The Subscriber may not assign this Agreement, either in whole or in part, without the prior written consent of Northern which will not be unreasonably withheld.
20.8 This Agreement will be governed by the laws of the Province of Ontario and the laws of Canada applicable therein, without reference to the conflict of laws provisions. The parties consent to the jurisdiction of the courts of Ontario.
20.9 Except as expressly provided otherwise in the Agreement, neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control that could not have been avoided by the exercise of reasonable foresight provided that the party affected by such failure or delay gives the other party prompt written notice of the cause, and uses reasonable commercial efforts to correct such failure or delay within a reasonable period of time (not to exceed •consecutive days).