Updated: May 2020

Terms

ACCEPTANCE

By clicking or tapping the acceptance button upon signing up to use the Software (as defined below) you hereby accept to be bound by these Terms of Use without any reservations, modifications, additions or deletions. If you do not agree to all the provisions contained in the Terms of Use, you are not authorized to use the Software. The Terms of Use are a legal and binding agreement between you and Heyday.

If you (the “Client”, as defined below) accept or agree to these Terms of Use on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Use and, in such event, the “Client” as used in these Terms of Use will refer and apply to that company or other legal entity.

BACKGROUND

  1. Heyday provides software as a service (SaaS) solutions for use in various messaging applications and customer engagement applications.
  2. Client wishes to purchase access to certain Heyday SaaS solutions.
  3. Heyday SaaS solutions will be hosted by Heyday and may be accessed remotely by Client on a SaaS basis in accordance with the terms and conditions of these Terms of Use.

In light of the above, the parties have agreed to the following.

1. DEFINITIONS

1.1  “​Affiliate(s)​” with respect to an entity, means any other entity which controls, is controlled by, or is under common control with that entity, and includes, for greater certainty, subsidiaries and parent corporations.

1.2  “​Confidential Information​” means (i) any and all non-public, confidential or proprietary information of a party, including any information relating to the content of these Terms of Use and a party’s business, products, services, activities, operations, business affairs, customers and prospects, intellectual property, technology, know-how, design rights and trade secrets, whether such information is provided orally, in writing, in computer readable form or otherwise and whether or not it is specifically identified as confidential, and (ii) any copies, extracts or reproduction, in whole or in part, of any of the foregoing.

1.3  “​Configuration Services​” means the services referred to in Section 4 of these Terms of Use.

1.4  “​Client​” means the individual, company or other entity subscribing to and paying for the Software.

1.5  “​Defect​” means a failure in program logic or functions of the Software which prevents the Software from operating in all material respects in its online user documentation.

1.6  “​Force Majeure​” means any unavailability caused by circumstances beyond Heyday’s reasonable control, including natural disasters, acts of government, floods, fires, earthquakes, civil unrest, pandemics, epidemics, government-mandated quarantines, publicly declared states of emergency, terrorism, strikes or other labour problems (other than those involving Heyday employees), Internet service provider failures or delays, or denial of service attacks.

1.7  “​Heyday​” means Heyday Technologies Inc.

1.8  “​Right of Access​” means the right to obtain the services of the Software remotely as described in section 2.1 of these Terms of Use.

1.9  “​SaaS Fees​” means the fees set by Heyday for the Right of Access, in connection with the plan selected by Client, subject to any price increases that may be communicated by Heyday to Client.

1.10  “​Software​” means Heyday’s SaaS solutions for use in various messaging applications and customer engagement applications, including its online user documentation (which, for greater certainty, does not include any source code or programming documentation).

1.11  “​Support Services​” means the services referred to in Section 4 of these Terms of Use.

1.12  “​Third Party Services​” means any third-party software or services, such as messaging applications, necessary to use the Software.

1.13  “​Training Services​” means the services referred to in Section 4 of these Terms of Use.

1.14  “​Updates​” means modifications to the Software to fix or by-pass known Defects or to make minor changes to its functionality, including patches and bug fixes, released by Heyday from time to time at its discretion, to the exclusion of Upgraded Software (as defined in Section 2.2 of theseTerms of Use).

1.15  “​User(s)​” means the employees, consultants or contractors of Client. Client remains liable for any breach of the terms of these Terms of Use by Users.

2. RIGHT OF ACCESS

2.1  Permitted Access​. Subject to the terms and conditions of these Terms of Use and to payment of the applicable SaaS Fees, Heyday grants to Client a personal, non-exclusive, non-transferable and non-assignable right to allow Client’s Users to remotely access and use the Software on anon-concurrent (named user) basis in accordance with the parameters set out in these Terms ofUse. Such access is for the sole purpose of Client’s online automated customer engagement and, for clarity and without limitation, is not for the purposes of offering the services of the Software to others.

2.2  Upgrades. ​New modules or versions which add material functional capabilities or new features tothe Software (“​Upgraded Software​”) may or may not be included in the Right of Access ofClient pursuant to these Terms of Use. Heyday may make certain Upgraded Software available at no charge and as part of these Terms of Use. However, other Upgraded Software will be availableonly upon payment of additional fees.

2.3  Beta Features. ​Other than Upgraded Software, which will be specifically identified as such byHeyday, Heyday may also make available to Client certain beta features (the “​Beta Features​”) of the Software at no charge in order to obtain Client’s feedback and to test out the Beta Features.Whenever Heyday makes Beta Features available to Client, it will obtain Client’s written consent prior to doing so, and such written consent may include online acceptance of such features. Client expressly agrees and acknowledges that the Beta Features (including any modifications or improvements thereto) are not ready for general commercial release and may contain bugs, errors,Defects or harmful components and that Heyday is providing the Beta Features to Client “as is”.Heyday does not guarantee that the Beta Features (or any part thereof) will ever be made generally commercially available, or that any generally commercially available release of theBeta Features will contain the same or similar functionalities as the release made by Heyday to Client.

2.4  Restrictions​. Client agrees that it shall not itself, either directly or indirectly including through any Affiliate, agent or other Person: (a) sell, lease, license, sublicense, loan, encumber or otherwise transfer its Right of Access to a third party, in whole or in part; (b) attempt to access or derive the source code of any portion of the Software; (c) attempt to make modifications, corrections, alterations, enhancements or other additions to the Software; (d) make the Software available to a third party by online services, remote dial-in, virtual private network, or network or telecommunication links of any kind; (e) provide, disclose, divulge or make available to, or permit use of the Software by Persons other than Users, without Heyday’s prior written consent;(f) circumvent the Software’s authentication or security access control systems or assist others todo so, or attempt to do so; or (g) disclose log-in or access credentials to unauthorized parties or fail to implement reasonable security measures to prevent such an occurrence.

2.5  Intellectual Property​. Client recognizes and agrees that all trade-marks (registered or not),inventions (whether patentable or not), patent applications, patents, industrial designs, works protected by copyright or related rights (registered or not), trade secrets, know-how or other intellectual property in or related to the Software (the “​Intellectual Property​”) are the exclusive property of Heyday or are otherwise controlled by Heyday. While these Terms of Use are in effect, Client and its Affiliates shall not take any action that challenges the Intellectual Property, including, but not limited to, invalidity actions brought against patents owned by Heyday.

2.6  Data​. By using the Software, Client recognizes and agrees that Heyday collects, uses and has specific rights (including ownership rights) to the following data:

2.6.1 Conversational Data. Heyday collects the conversations generated by Client’s use of the Software (the “​Conversational Data​”). Client recognizes and agrees that the rights in such Conversational Data shall be held jointly by Heyday and Client, each of whom shall have the right to use the Conversational Data. A copy of suchConversational Data may be requested by Client at any time ​during the term of the Terms of Use by sending Heyday a written notice to that effect, upon whichHeyday shall make available a copy of the Conversational Data to Client within a reasonable delay. Conversational Data is no longer accessible to Client upon termination of the Terms of Use.

2.6.2  Client Data. Heyday accesses various Client-owned data by connecting toClient’s systems in order to access the data found there. This data is unique toClient, is generated by and hosted on Client hardware and software and does not include either Conversational Data or Heyday Data (the “​Client Data​”). ClientData is used by Heyday to improve and enhance Client’s conversational experience, Client’s customer’s user experience, and the general performance of the Software. Such Client Data shall remain fully owned by Client, with Heyday having only a limited right to use such data for the purposes outlined in the previous sentence and only on an internal basis. Heyday recognizes and agrees that it has no right to sell, share or disclose Client Data to any third party, and no right to use Client Data other than for the purposes described in this Section2.6.2. Client is responsible for maintaining back-ups of Client Data and for the post-termination storage, use, processing, and anonymization (if any) of ClientData.

2.6.3  Heyday Data​. Heyday Data means all data other than Client Data orConversational Data as defined above, and for greater certainty, includes data gathered, purchased, or licensed in whole or in part by Heyday, and the trained version of Heyday’s AI algorithm and Heyday analytics data. Client recognizes and agrees that Heyday data shall remain fully owned by Heyday, which shall have all rights over the Heyday data.

2.6.4  Anonymization​. Upon termination of the Terms of Use, Heyday shall anonymize all personal information found in the data controlled by Heyday, namely theConversational Data and Heyday Data, and according to procedures that comply with the anonymization standards under applicable data protection laws.

2.7  Reservation of Rights​. All rights, titles, and interests that are not expressly granted to Client inthese Terms of Use are hereby reserved by Heyday.

2.8  Location of Server​. The Software will be hosted in facilities located in Canada or the UnitedStates or both.

2.9  No Access to Source Code​. These Terms of Use do not grant Client the right to access or obtainthe source code of the Software nor any programming documentation.

2.10  Suspension of Access Right​. Heyday may suspend Client’s Right of Access if Client fails tocomply with any material obligation under these Terms of Use, including, without limitation,Sections 2.4, 2.5, 3.2(h)and 6.1-6.3. Heyday may also suspend Client’s Right of Access if Heydaydetects fraud, a security breach a denial of service attack or any other similar threat that causes orthat could cause, in Heyday’s reasonable opinion, damage to the Software or to the Client Data orHeyday Data. Any suspension by Heyday of the Software in application of this section shall notrelease Client from its payment obligations under the Terms of Use.

3. CLIENT RESPONSIBILITIES

3.1  Third Party Services. The Software may use Third Party Services. Such use of Third PartyServices is subject to these third parties’ terms and conditions. To the fullest extent possible while still complying with these Terms of Use and all applicable laws, Client shall use the Software in accordance with such Third Party Services’ terms and conditions and privacy policies. TheseThird Party Services remain the property of their respective creators and are products and services separate from Heyday’s and are not governed by these Terms of Use. Client hereby understands and acknowledges that Heyday has no control whatsoever on such Third Party Services, and that it is Client’s sole responsibility to ensure that it understands, agrees and complies with the terms of use and other policies applicable to these Third Party Services. Heyday represents and warrants that these Third Party Services are compliant with all applicable privacy laws.

3.2  Other Client Responsibilities​. Client acknowledges that its Right of Access is conditional on respecting the following terms:

(a)  Procuring and maintaining all of the hardware, connections, telecommunication services and other products or services required to remotely access the Software and exercise theRight of Access. The parties agree that Heyday has no obligation to provide any such hardware, connections, telecommunications services, etc., under these Terms of Use;

(b)  Cooperate with Heyday’s reasonable requests in order to assist Client with configuration and support;

(c)  Keep the log-in and access credentials required to exercise the Right of Access strictly confidential and ensure that its Users do the same, take reasonable steps to prevent their disclosure to third parties and ensure that any internal disclosure is on a need-to-know basis. Client shall be responsible for any damages suffered by Heyday as a result of the disclosure or misuse of Client’s and its Users’ log-in or access credentials;

(d)  Maintain security measures in conformity with best industry practices and promptly inform Heyday upon becoming aware of unauthorized access to the Software, or the unauthorized disclosure or misuse of log-in or access credentials;

(e)  Promptly inform Heyday of all issues or errors involving the Software of which it becomes aware;

(f)  Share any personal information and other data about or relating to identifiable individuals(including Users) with Heyday only in conformity with privacy laws, regulations and binding guidelines to which Client is subject, that may be applicable to Client’s activities in Canada or any other jurisdiction where Client operates;

(g)  Provide Heyday’s technical support personnel with access to Client’s computer systems and networks where reasonably required for technical support purposes; and

(h)  Use the Software and Right of Access only in conformity with laws, regulations and binding guidelines to which Client is subject, including in particular Canada’s anti-spam law regarding commercial electronic messages, as well as any other laws, regulations and binding guidelines that may be applicable to Client’s activities in Canada or any other jurisdiction where Client operates.

4. HEYDAY’S SERVICES

4.1  Configuration Services​. In exchange for the fees as described in Section 6.2 below, Heyday shall deploy reasonable efforts to perform the Configuration Services, which may include, without limitation, integration of Client’s system environment with the Software. Client acknowledges that these services will require its input and cooperation and agrees to provide same in a timely manner. Any timelines set by Heyday with respect to the provision of Configuration Services shall be automatically postponed in the event that Client is not in a position to provide necessary information, material or responses in a timely manner. The Configuration Services are to be performed remotely by Heyday. In the event that the foregoing is not possible or desired byClient, Heyday may charge reasonable travel and living expenses for attending the premises ofClient, which Client agrees to pay promptly upon presentation of the supporting documentation.

4.2  Training Services​. In exchange for the fees as described in Section 6.2 below, Heyday shall provide the Training Services pertaining to the Software, which may include, without limitation,User training on the operation of the Software and Software functionalities. The TrainingServices will be provided remotely via videoconference or similar means and they will only be provided in the English or French language.

4.3  Support Services​. Heyday agrees to provide its Support Services in the form of remote technical support via telephone, chat, email or other efficient communication method between 8 AM and 5PM (UTC-5), Monday to Friday. The purpose of the Support Services is to attempt to identify and resolve functional problems in the Software.

4.4  Severity​. Each support request received will be given a severity level by Heyday according to the following guidelines:

a)  High​: when the Software is not operational or has suffered a major loss of capability resulting in the inability to use the Software, or if a failure is so frequent that it precludes productive use of the Software or when the Software is operational but its capability is severely degraded, such as the inability to run a major application within the Software, a critical product feature or function does not work, or a failure requires on-going intervention in order to maintain productive use;

b)  Medium​: when the Software is not operational or has suffered a loss of capability, but an acceptable workaround exists, which allows Client to use the Software, or if the Software suffers from a degradation in capacity or traffic handling capabilities, or if there is a problem which results in a significant impact on the Software’s performance for a period of 8 hours or more;

c)  Low​: when the Software is operational and the problem does not result in a significant impact on the Software’s performance.

4.5  Support Response Time​. Heyday shall exercise all commercially reasonable efforts to meet the following response times:

a)  High severity problems will be acknowledged and work begun to address them within 4business hours;

b)  Medium severity problems will be acknowledged and work begun to address them within24 business hours;

c)  Low severity problems will be acknowledged and work begun to address them within 5business days.

4.6  Exclusions. ​The Support Services shall not include services: (i) in respect of Client hardware and software problems; (ii) in respect of education, installation, training or customization; (iii) in respect of the use of the Software in violation of the Terms of Use; (iv) in respect of Defects in or caused by third party software; or (v) problems arising from network connectivity problems.

4.7  No Defect​. Heyday shall not be responsible to correct any Defect or other failure of performance of the Software caused by the following: (i) use of the Software that materially deviates from its online user documentation; (ii) modification, customization, alteration or addition or attempted modification, customization, alteration or addition to the Software; (iii) abuse or misuse of theSoftware; or (iv) failure of Client to use the latest version of the Software.

4.8  Updates. ​Heyday may at its sole discretion update the Software from time to time and shall make commercially reasonable efforts to advise Client in advance of all Updates that materially affect the functionalities of the Software.

4.9  Previous Versions​. Client shall not refrain Heyday from updating the Software or delay the performance of Updates. Heyday shall not be required to continue Support Services (including patches, bug fixes and other technical support set out in these Terms of Use) if problems or aDefect arise because Client abstains or refuses to apply one or more Updates.

5. CONFIDENTIALITY

5.1 Obligation of Confidentiality. ​The Party (“​Recipient​”) receiving from the other Party (“​Discloser​”) any Confidential Information, or otherwise obtaining any Confidential Information ,shall keep confidential Discloser’s Confidential Information and shall protect Discloser’sConfidential Information with the same degree of care as Recipient employs in the protection of its own confidential and proprietary information, but at least with a reasonable degree of care.Without limiting the scope of the foregoing, Recipient shall not copy, reproduce, disclose, circulate or publish Discloser's Confidential Information or permit such action, except as reasonably required for the purpose of the Terms of Use to comply with applicable laws, directives, policies or procedures. Recipient shall disclose Confidential Information only to those of its employees, consultants and subcontractors who have a need to know said ConfidentialInformation for the purposes of the Terms of Use or as permitted herein. Recipient remains liable for any breach of the terms of this Section 5 by its employees, consultants or subcontractors (including Client’s Users)

5.2  Use of Confidential Information. Recipient may not use Discloser's Confidential Information in any manner except as reasonably required for the purpose of the Terms of Use or as permitted herein.

5.3  Legal Communication. ​In the event Recipient becomes legally compelled to disclose any portion of Discloser’s Confidential Information, Recipient immediately shall give notice thereof toDiscloser and shall collaborate with Discloser reasonably and in good faith to prevent or limit the disclosure or obtain a protective order or other recourse. In the event that disclosure cannot be prevented, that the protective order or other recourse fails, or that Discloser waives compliance with this provision, Recipient shall disclose only that portion of the Confidential Information which it is legally bound to disclose (as reasonably determined by Recipient) and exercise all reasonable efforts to obtain a reliable guarantee that the confidentiality of the disclosedConfidential Information will be ensured in accordance with the terms hereof.

5.4  Injunctive Relief. ​Each party acknowledges that the restrictions contained in this Section 5 are reasonable and necessary to protect the other party’s legitimate interests. Each party understands and agrees that the remedies at law for the violation of any of the undertakings or provisions of this Section 5 are insufficient, that such violations will cause irreparable harm within a short period of time, and that the other party shall be entitled to preliminary injunctive relief or other injunctive relief against any such violation without the necessity of proving actual damages. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all other remedies the other party shall have at law and in equity for the enforcement of these undertakings and provisions.

5.5  Assistance. ​Each party agrees that it shall notify the other party if it becomes aware of, or has reasonable grounds to suspect, that the unauthorized disclosure of the Confidential Information of the other party has occurred or is likely to occur.

6. FEES AND PAYMENT TERMS

6.1  SaaS Fees​. In consideration for the rights granted herein, Client shall pay Heyday the SaaS Fees for the plan selected by Client. For greater certainty, a reasonable amount of Support Services, as determined by Heyday in its sole discretion, are included as part of the SaaS Fees. The SaaS Fees may be increased by Heyday on or after January 1s​ t of a given year by an amount equal to the general rate of inflation in Canada for the previous year, as measured by the Consumer PriceIndex. Any price increases will be communicated to Client prior to taking effect.

6.2  Fees for Configuration Services and Training Services​. If Client requires ConfigurationServices and/or Training Services, Client agrees to pay for the Configuration Services and theTraining Services in accordance with the fees set by Heyday, which fees represent budgetary estimates based on the information provided by Client. Fees for Configuration Services andTraining Services are calculated on an hourly basis and are separate from the SaaS Fees.

6.3  Payment Terms​. Client shall make all payments to Heyday, or to Shopify on Heyday’s behalf, by credit card, at the beginning of the Initial Term and each Renewal Term (as such terms are defined below), subject to any promotional period made available by Heyday. By signing up for access to the Software and accepting these Terms of Use, Client authorizes Heyday to charge Client’s credit card for the SaaS Fees owed to Heyday. Client’s termination of these Terms of Use and Right of Access as per Section 7.1 below shall effectively withdraw Client’s consent to allowHeyday to charge its credit card for the SaaS Fees.

6.4  Non-Refundable​. All amounts paid or payable under these Terms of Use are non-refundable.

6.5  Third-Party Payment Processors. ​All payments for SaaS Fees made via credit card are processed using a secure https:// connection with a valid security certificate, and payment processing is handled through third-party payment processors (the “​Third-Party PaymentProcessors​”), currently limited to Stripe and Shopify. The Third-Party Payment Processors currently accept certain credit and debit cards (which shall be displayed to Client upon making payment) as payment options, but these are subject to change without notice. Once transactions are accepted by the Third-Party Payment Processors, they are processed in accordance with their program rules and procedures and terms and conditions. Heyday and the Third-Party PaymentProcessors are unaffiliated companies and Heyday has no influence on the operations of theThird-Party Payment Processors. Heyday shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise, resulting from any error or failure on the part of a Third-Party Payment Processor. All billing information is collected by the Third-PartyPayment Processors, on their own secured servers. Heyday does not have access to any credit card information, nor can it be responsible for any breach of information caused by faulty programming or malicious users on the servers of the Third-Party Payment Processors.Non-financial information will, however, be available to Heyday for record-keeping purposes.

6.6  Sales Taxes​. SaaS Fees do not include sales taxes, which will be identified separately from the SaaS Fees and added to the amount charged to Client’s credit card.

6.7  Currency​. Unless otherwise indicated, all fees are expressed in U.S. dollars.

7. TERM AND TERMINATION

7.1  Term and Client Termination​. Depending on the plan selected by Client, the Right of Access is granted for either: (i) an initial term of one (1) month; or (ii) an initial term of one (1) year (the“​Initial Term​”). The Right of Access shall renew automatically for successive renewal terms(each, a “​Renewal Term”​ ), equal in length to the Initial Term, unless and until Client terminates these Terms of Use and its Right of Access by either: (i) deleting its Heyday account; or (ii)deleting the Heyday app.

7.2  Termination for Cause​. Each party may terminate these Terms of Use in the event the other party breaches the terms of these Terms of Use and fails to remedy such breach within thirty (30)days of written notice given by such party.

7.3  Effect of Termination​. The Right of Access ends when these Terms of Use are terminated, regardless of the reason for termination, and no right of use or other such right to access theSoftware shall subsist for Client.

7.4  Surviving Provisions. ​Sections 2.5, 2.6 and 5 to 9 shall survive the termination or expiry of these Terms of Use.

8. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

8.1  Professional and Workmanlike​. Heyday warrants that the Support Services (and, where applicable, the Configuration Services and the Training Services) shall be performed in a professional and workmanlike manner.

8.2  Disclaimer of Warranties. ​OTHER THAN THE EXPRESS WARRANTY SET OUT IN SECTION 8.1, HEYDAY MAKES NO REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND WHATSOEVER IN CONNECTION WITH THESE TERMS OF USE OR THE SERVICES DESCRIBED IN THESE TERMS OF USE, AND HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS,WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,THOSE OF MERCHANTABILITY, PERFORMANCE, ACCURACY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND/OR FITNESS FOR A PARTICULAR PURPOSE.

8.3  Limitation of Liability​. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT MAY HEYDAY, ITS AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS,OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS, VENDORS AND LICENSORS BE LIABLE FOR (I) ANY INDIRECT, INCIDENTAL, EXTRAORDINARY,CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR (II) ANY LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, LOSS OF USE,BUSINESS INTERRUPTION OR ANY OTHER FINANCIAL LOSS, ARISING DIRECTLY OR INDIRECTLY FROM THE TERMS OF USE, OR CAUSED BY THE SOFTWARE ORTHE SERVICES, OR THE MISUSE OR INABILITY TO USE THE SOFTWARE OR THE SERVICES, EVEN IF HEYDAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION: WHETHER IN CONTRACTUAL LIABILITY, APPLICATION OF THE WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY OF MANUFACTURERS AND VENDORS, STRICT CIVIL LIABILITY OR UNDER ANY OTHER LEGAL THEORY.

8.4  Amount Limitation. ​THE TOTAL LIABILITY OF HEYDAY IN RESPECT OF THE CLAIMS OF CLIENT OR ANY OTHER PERSON ARISING UNDER THESE TERMS OF USE SHALL BE LIMITED TO THE AGGREGATE SUMS PAID BY CLIENT TO HEYDAY UNDER THE TERMS OF USE DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT FROM WHICH THE LIABILITY ARISES. THE OCCURRENCE OR FILING OF MULTIPLE CLAIMS SHALL NOT INCREASE THIS AMOUNT.

8.5  Allocation of Risk​. It is agreed that the limitation of remedies/liability set forth in this Section 8, and elsewhere in these Terms of Use, allocates the commercial risks between Heyday and Client arising out of or in connection with these Terms of Use and that the financial terms of Section 6 and the other terms and conditions of these Terms of Use reflect this allocation of risk.

9. MISCELLANEOUS

9.1 Amendment. Heyday reserves the right, at any time and without prior notice, to modify or replace any of the Terms of Use. Any changes to the Terms of Use can be found at this URL. It is Client’s responsibility to check the Terms of Use periodically for changes. Client’s use of the Software following the posting of any changes to the Terms of Use constitutes acceptance of those changes. If there are any significant changes to the Terms of Use that materially affectClient’s relationship with Heyday, Heyday will use commercially reasonable efforts to notifyClient by sending a notice to the email address used when Client signed up for the Software, which shall include a link to the updated Terms of Use. Client’s continued use of the Software following such notice will constitute an: (i) acknowledgement of the amended Terms of Use; and(ii) agreement to abide by and be bound by the amended Terms of Use.

9.2  Successor and Assigns​. Client shall not sell, transfer or assign any right, title or interest it has in these Terms of Use, without the prior written consent of Heyday. Any assignment not in accordance with this Section 9.2 shall be void. Heyday may, upon notice to Client, sell, transferor assign these Terms of Use or any right, title or interest it has in these Terms of Use, if such sale, transfer or assignment (i) is part of the sale, transfer or assignment of all or substantially all of its assets or business; or (ii) is made to one of its Affiliates.

9.3  Entire Agreement​. These Terms of Use, in conjunction with the Privacy Policy, shall constitute the entire agreement between the parties with respect to the subject matter hereof and merges all prior, contemporaneous, or collateral agreements, representations, warranties, and communications, including marketing materials, advertisements, and any other documents emanating from Heyday or otherwise.

9.4  Governing Law; Forum​. These Terms of Use shall be governed and construed in accordance with the laws in force in the Province of Quebec, Canada. The courts sitting in the district ofMontreal in the Province of Quebec shall have exclusive jurisdiction in respect of any dispute related to these Terms of Use. The foregoing choice of jurisdiction and venue shall not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction. ​The ​United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such Convention shall not apply to these Terms ofUse nor to any dispute arising therefrom.

9.5  Independent Contractors​. These Terms of Use do not make either party the partner, employee, trustee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party.

9.6  Contact and Notices. For the purposes of any notice required under these Terms of Use, Heyday shall send an email to the email address used when Client signed up for the Software. Client agrees to immediately notify Heyday of any change to this email address. All notices sent byClient should be sent to ​humans@heyday.ai​.

9.7  Force Majeure. ​No default, delay or failure to perform on the part of either party shall be considered a breach of these Terms of Use where such default, delay or failure is due to a Force Majeure.

9.8  Language​. The parties have expressly requested that these Terms of Use and be drawn up in English and that all modifications thereof can be made in this language. ​Les parties ont expressément demandé que ce contrat soit rédigé en anglais et que toute modification à celui-ci puisse également être rédigée dans cette langue.​