Last updated: June 2021
These Railtown Terms of Service, together with an Order Form (the “Agreement”) govern Customer’s access to and use of the Railtown AI Platform. This Agreement forms a binding legal agreement between Railtown AI Technologies Inc. (“Railtown”, “us”, “we”, “our”) and Customer. The term “Customer” refers to the organization that you represent in agreeing to this Agreement. If your account is being set up by someone who is not formally affiliated with an organization, Customer is the individual creating the account. The “Parties” refer to Railtown and Customer and “Party” refers to each of Railtown and Customer.
BY USING THE RAILTOWN AI PLATFORM (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE RAILTOWN AI PLATFORM.
CUSTOMER REPRESENTS AND WARRANTS TO RAILTOWN THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE RAILTOWN AI PLATFORM ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO RAILTOWN THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
This Agreement is entered into the earlier of: (a) the date Customer first uses any part of the Railtown AI Platform; and (b) the date Customer agrees to be bound by this Agreement (the “Effective Date”). Definitions.
As used in this Agreement, the following capitalized words have the meaning set out below:
“Affiliate” means, with respect to a Party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
“Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
“Customer Data” means any data, information, content, records, and files that Customer or any of its Users load or enters into, transmits to, or makes available to the Railtown AI Platform, including but not limited to Personal Information.
“Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over Railtown, Customer, the Railtown AI Platform, the Customer Data or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by, such entities.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
“Order Form” means Exhibit A, or any additional order form that references this Agreement and that is agreed to by the Parties.
“Permitted User(s)” means those employees and independent contractors authorized by Customer to access and use the Railtown AI Platform on Customer’s behalf.
“Personal Information” means information about an identifiable individual or information.
“Railtown AI Platform” means: (i) software, hardware, systems and services through which Railtown hosts and makes available the Railtown solution for efficient software development as described in an Order Form, including any components comprising thereof or information and data made available thereon; (ii) any Modification of the services referred to in (i); and (iii) the Support Services.
“Website” means any websites used by Railtown to provide the Railtown AI Platform, including the websites located at https://www.railtown.ai.
2. The Railtown AI Platform
Provisioning of the Railtown AI Platform. Subject to Customer’s compliance with the terms and conditions of this Agreement, Railtown will make the Railtown AI Platform available to Customer on the terms and conditions set out in this Agreement during the Term. Customer is responsible for identifying and authenticating all Users, for ensuring only Users access and use the Railtown AI Platform, and for Users’ compliance with this Agreement.
Restrictions on Use. Customer acknowledges and agrees that it is responsible for the compliance by all Users with this Agreement, any guidelines and policies published by Railtown from time to time, and the activities of all Users on the Railtown AI Platform. Without limiting the generality of the foregoing, Customer will not itself, and will not permit others to:
sub-license, sell, rent, lend, lease or distribute the Railtown AI Platform or any Intellectual Property Rights therein, or otherwise make the Railtown AI Platform available to the Parties other than Permitted Users;
use the Railtown AI Platform to permit timesharing, service bureau use or commercially exploit the Railtown AI Platform;
use or access the Railtown AI Platform: (A) in violation of any applicable law or Intellectual Property Right; (B) in a manner that threatens the security or functionality of the Railtown AI Platform; or (C) for any purpose or in any manner not expressly permitted in this Agreement;
use the Railtown AI Platform to create, collect, transmit, store, use or process any Customer Data: (A) that Customer does not have the lawful right to create, collect, transmit, store, use or process; (B) that violates any applicable laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (C) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
Modify the Railtown AI Platform;
attempt to reverse engineer, de-compile or disassemble the Railtown AI Platform;
remove or obscure any proprietary notices or labels on the Railtown AI Platform, including brand, copyright, trademark and patent pending notices;
access or use the Railtown AI Platform for the purpose of building a similar or competitive product or service; or
perform any vulnerability, penetration or similar testing of the Railtown AI Platform.
Suspension of Access; Scheduled Downtime; Modifications. Railtown may, from time to time and in its discretion without limiting any of its other rights or remedies at law or in equity under this Agreement:
suspend Customer’s access to or use of the Railtown AI Platform: (A) for scheduled maintenance; or (B) due to a Force Majeure; (C) if Railtown believes in good faith that Customer or any User has violated any provision of this Agreement; (D) to address any emergency security concerns; (E) if required to do so by a regulatory body or as a result of a change in Applicable Law; and
make any Modifications to the Railtown AI Platform.
Any permitted suspension of the Railtown AI Platform by Railtown in accordance with Section 2(c)(i) will not excuse Customer from any of its obligations to pay Fees to Railtown.
Subcontracting. Railtown may engage third parties to assist it in providing the Railtown AI Platform or any part thereof.
3. Ownership; Reservation of Rights
Except as expressly set forth in this Agreement, nothing in this Agreement assigns or grants to Railtown any right, title or interest including any Intellectual Property Rights in or to Customer Data. Customer grants to Railtown a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right during the Term to access, collect, use, process, store, disclose and transmit Customer Data to: (i) provide the Railtown AI Platform; (ii) improve and enhance the Railtown AI Platform; and (iii) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). Railtown may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind.
Railtown or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to: (i) the Railtown AI Platform; (ii) anything used, developed or delivered by or on behalf of Railtown under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii).
5. Customer User Account; Responsibility for Permitted Users
Upon Customer’s request, Railtown will issue one or more accounts (each, a “Customer User Account”) to Customer for use by one or more individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Railtown AI Platform (each, a “Permitted User”). Customer will ensure that each Permitted User only use the Railtown AI Platform through its assigned Customer User Account. Customer will not allow any Permitted User to share its Customer User Account with any other person.
Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Railtown AI Platform in compliance with this Agreement.
Customer will promptly notify Railtown of any actual or suspected unauthorized use of the Railtown AI Platform. Railtown reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.
Customer will ensure that all individual users of the Railtown AI Platform, including Permitted Users, are contractually bound to terms and conditions with Customer that are no less restrictive or protective of Railtown’s rights than those set forth in this Agreement.
Customer will generally have access to Railtown’s technical support for the Railtown AI Platform (“Support Services”): via email at email@example.com.
7. Fees and Payment
Fees. Customer will pay to Railtown the fees described on the Website (the “Fees”). Customer must provide valid credit card information upon Customer User Account creation. Customer agrees and acknowledges that Railtown may bill its payment method in accordance with this Agreement and the Order Form.
Late Payment. If Customer’s method of payment is declined when Fees are due, Customer must provide updated valid credit card information. If Customer fails to provide updated payment information for 45 days from the initial billing date, Railtown may suspend Customer’s access to the Railtown AI Platform until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Railtown.
8. Confidential Information
Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its service providers, licensors or customers that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or Affiliates that have a “need to know” for the purposes of receiving or providing the Railtown AI Platform and that have entered into written agreements no less protective of such Confidential Information than this Agreement; (ii) use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
Exceptions to Confidentiality. Notwithstanding Section 9(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or in the case of Railtown, to potential assignees, acquirers or successors of Railtown if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Railtown.
9. Warranty; Disclaimer
Provider Warranty. Railtown represents and warrants that it has established and implemented policies, programs and procedures that are commercially reasonable and in accordance with industry practices, including administrative, technical and physical safeguards, to protect the confidentiality, integrity and security of Customer Data in its possession, custody or control against unauthorized access, use, modification, disclosure or other misuse.
Customer Warranty. Customer represents and warrants to, and covenants with Railtown that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Railtown to provide the Railtown AI Platform, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Railtown and to or from all applicable third parties.
GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, RAILTOWN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY RAILTOWN TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND PROVIDER DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA, CONTENT OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD-PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, RAILTOWN HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
Railtown will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate of a Customer Indemnitee) that arise from or relate to any allegation that the Railtown AI Platform infringe any third-party Intellectual Property Right in Canada or the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any Railtown AI Platform into, or any combination, operation, or use of any Railtown AI Platform with, any products or services not provided or authorized by Railtown, unless such infringement would also have resulted solely from the use of the Railtown AI Platform without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of any Railtown AI Platform other than by Railtown or with Railtown’s express written approval; or (C) unauthorized use of the Railtown AI Platform.
If the Railtown SaaS Service is, or in Railtown’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of any Railtown SaaS Service is enjoined or threatened to be enjoined, Railtown may, at its option and sole cost and expense:
obtain the right for Customer to continue to use the affected Railtown AI Platform materially as contemplated by this Agreement;
modify or replace Railtown AI Platform, in whole or in part, to seek to make the Railtown AI Platform (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Railtown AI Platform under this Agreement; or
if Railtown determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate the Railtown AI Platform, in whole or in part, and require Customer to immediately cease all use of the terminated Railtown AI Platform or part or feature thereof and refund any unused prepaid Fees for the terminated Railtown AI Platform, if applicable.
Customer Indemnity. Customer will defend, indemnify and hold harmless Railtown, and its officers, directors, employees and agents (each, a “Provider Indemnitee”) from and against any and all Losses incurred by a Provider Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of Sections 2(b) or 10(c); or (iii) unauthorized use Railtown AI Platform by Customer or any Permitted User.
Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 11. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11(c) will not relieve the Indemnitor of its indemnity obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
11. Limitation of Liabilities
AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF RAILTOWN IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE RAILTOWN AI PLATFORM IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL RAILTOWN’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL RAILTOWN BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
12. Term and Termination
Term. This Agreement will commence on the Effective Date and continue to be in effect until terminated in accordance with its terms (the “Term”).
Termination for Convenience. Either Party may terminate this Agreement at any time by providing at least 30 days’ advance written notice to the other Party
Termination for Cause. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
Transition. Upon termination of this Agreement, Customer will immediately cease accessing or using the Railtown AI Platform. Within thirty(30) calendar days following termination, Railtown will, at Customer’s option, return to Customer or delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by Railtown to provide the Railtown AI Platform. Please submit data deletions requests to firstname.lastname@example.org.
Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 8 (Fees and Payment), Section 9 (Confidential Information), Section 10(c) (Disclaimer), Section 12 (Limitation of Liabilities), Section 13(e) (Survival), and Section 14 (General Provisions).
13. General Provisions
Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Railtown, to the following address:
if to Railtown, to the following address:
Railtown AI Technologies Inc.
Unit 104, 8337 Eastlake Drive
Burnaby, BC V5A 4W2
Attention: Marwan Haddad
Email: email@example.com, and
if to Customer, to the current postal or email address that Railtown has on file with respect to Customer. Railtown may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Railtown current at all times during the Term.
Assignment. Customer will not assign this Agreement to any third party without Railtown’s prior written consent. Railtown may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns
Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, Railtown may: (i) commence lawsuits to collect unpaid fees from Customer; and (ii) seek injunctive relief with respect to a violation of Provider’s Intellectual Property Rights; in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
Export Restrictions. Customer agrees not to directly or indirectly export or re-export any of the Railtown AI Platform without first obtaining all required licenses, permits and permissions required under Applicable Law. Railtown makes no representation or warranty that the Railtown AI Platform may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).
Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
Independent Contractors. Railtown’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, RAILTOWN MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY RAILTOWN, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS EARLIER).
English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.