Distance One Terms of Service

These Distance Terms of Service (the “Agreement") are entered into by and between Rare Circles Inc. dba Distance One (“Distance") and the entity or person placing an order for, or accessing, any Services (“Subscriber” or “you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Subscriber” reference your company.

This Agreement permits Subscriber to purchase subscriptions to services from Distance pursuant to Order Form(s) (defined below) and sets forth the terms and conditions under which those products and services will be provided..

The “Effective Date” of this Agreement is the date that is the earlier of: (a) Subscriber's initial access to any Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. PLEASE READ IT CAREFULLY.

We reserve the right, at our sole discretion, to modify, amend, or update these terms and conditions at any time. Such changes will be effective immediately upon posting within the software or on our website, and continued use of the software following any changes constitutes acceptance of those changes.

1. DEFINITIONS

“Affiliate” means any entity under the control of Subscriber where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.

“AI” means artificial intelligence or other machine learning technology.

“AUP” means Distance's Acceptable Use Policy, incorporated into these terms by this reference.

“Beta Offerings” means pre-release services, features, or functions identified as alpha, beta, preview, early access, or words or phrases with similar meanings.

“Channels” means the Distance-enabled messaging solutions embedded on Subscriber Properties and any Third Party Messaging Apps selected by Subscriber through an Order Form. 

“Contractor” means an independent contractor or consultant.

“Dashboard” means Distance's user interface for accessing and administering the Services that Distance may make available to Subscriber.

“Documentation” means the technical user documentation provided with the Services. 

“End Customers” means Subscriber's customers, potential customers, and other users of and visitors to the Subscriber Properties.

“Feedback” means comments, questions, suggestions or other feedback relating to any Distance product or service, including, without limitation, integrations with Third Party Messaging Apps. Feedback does not include any Subscriber Data.

“Intellectual Property Rights” include all valid patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country or other jurisdiction.

“Distance Code” means certain code, software development kits (SDKs), application programming interfaces (APIs), other code or libraries provided by Distance for deployment on Subscriber Properties.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.

“Order Form” means a written or electronic form referencing this Agreement that is used to order the Services, including, without limitation, an online registration or payment process completed through Distance's website. The Order Form may contain details about your order, the applicable service plan, contracted usage quantity (e.g., seats or other usage quantity metric identified in the Order Form) and Subscription Term. Upon execution by the parties (or, in the case of electronic orders, confirmation and placement of the order), each Order Form will be subject to the terms and conditions of this Agreement.

“Permitted User” means an employee or Contractor of Subscriber or its Affiliate who is authorized to access the Service.

“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA") not authorized or covered by a duly executed Business Associate Agreement with Distance; or (iii) any other personal data of an EU citizen deemed to be in a “special category” (as identified in EU General Data Protection Regulation or any successor directive or regulation).

“Services” means Distance's proprietary communications and customer contact solution for small and medium businesses, as further described in the applicable Order Form.

“Subscriber Data” means any data, content or other information of any type that is submitted to the Services by or on behalf of Subscriber, including without limitation: (a) data, content or other information submitted, uploaded, instructed to be used for or imported to the Services by Subscriber (including from Third Party Platforms) and (b) data, content or other information provided by or about End Customers (including chat and message logs) that are collected from the Subscriber Properties using the Services.

“Subscriber Properties” means Subscriber's websites, apps, or other offerings owned and operated by (or for the benefit of) Subscriber through which Subscriber uses the Services to communicate with End Customers.

“Subscriber Knowledge Base” means any End Customer scripts, communication templates, communication guidelines or similar provided by Subscriber to Distance.

“Subscriber Trademarks” means any Subscriber tradenames, trademarks, logos or similar provided or made available by or on behalf of Subscriber to Distance. 

“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Distance.

"Third Party Messaging App(s)” means a Third Party Platform that provides messaging or other communication functionality. 

"Third-Party Platform(s)” means any software, software-as-a-service, data sources or other products or services not provided by Distance that are integrated with or otherwise accessible through the Services.

2. DISTANCE SERVICES.

2.1. Services Overview. Distance's Services are a suite of Subscriber service-oriented software-as-a-service, AI and human-assisted communication solutions across Subscriber Properties and multiple Third Party Messaging Apps offered through a single platform. The Services are designed to enable Subscriber to manage interactions with End Customers.

2.2. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term", as may be renewed in accordance with section 8.2). Distance will (a) make the Services available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Distance’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Distance employees), Internet service provider failure or delay, Third Party Platforms, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Distance’s provision of its Services to its customers generally (i.e., without regard for Subscriber’s particular use of the Services), and subject to Subscriber’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form

2.3. End Customer Communications. Where selected in the applicable Order Form, Service include communications by Distance on behalf of Subscriber with End Customers (“End Customer Communications”)  generated through artificial intelligent agents (“AI Agents”) and/or human agents (“Human Agents” and collectively “Agents”). This includes but is not limited to answering End Customer questions, capturing quote details, drafting and sending emails, flagging customer service issues, collecting End Customer contact information, responding to general business or service questions, and such other related communications all of which take place in the Channels. Subscriber appoints Distance as Subscriber’s agent for the purpose of making the End Customer Communications on behalf of Subscriber.  Distance shall use reasonable commercial endeavours to ensure that the End Customer Communications are consistent with the Subscriber Knowledge Base. HOWEVER, DISTANCE DISCLAIMS ANY AND ALL RESPONSIBILITY FOR THE CONTENT OF ANY END CUSTOMER COMMUNICATIONS AND FOR ANY OBLIGATIONS, COMMITMENTS, LIABILITIES OR CONTRACTUAL OBLIGATIONS THAT MAY ARISE. WITHOUT LIMITING THE FOREGOING, IT IS SUBSCRIBER’S SOLE RESPONSIBILITY TO DETERMINE THE SUITABILITY, ACCURACY AND COMPLETENESS OF THE SUBSCRIBER KNOWLEDGE BASETHAT MAY BE PROVIDED BY SUBSCRIBER TO DISTANCE.

2.4. Access to Services. Subscriber may access and use the Services solely to the extent subscribed for under an Order Form, and solely for its own benefit (and for the benefit of End Customers) and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including, without limitation, the usage quantity tracked). Use of and access to the Services is permitted only by Permitted Users. If Subscriber is given API keys or passwords to access the Services on Distance's systems, Subscriber will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs and related credentials are granted to individual, named persons and may not be shared. If Subscriber is accessing the Services using credentials provided by a third party (e.g., Google), then Subscriber will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Subscriber will be responsible for any and all actions taken using Subscriber's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Subscriber, then Subscriber will promptly delete such user ID and otherwise terminate such Permitted User's access to the Service. Distance reserves the right to suspend access to any Services or features (including, without limitation, in-app messaging and integrations with Third Party Platforms and Third Party Messaging Apps) if Subscriber has exceeded applicable usage limits (if any) or if Distance otherwise determines, in its sole discretion, that Subscriber is using the applicable Service in a manner that has become excessive (e.g., substantially exceeds typical use projections or exceeds usage by similar-sized Subscribers (where Subscriber size is defined by number of seats), including, but not limited to, storage and bandwidth consumption) and/or negatively impacts the operability, integrity, or security of the Service until usage is reduced to reasonable levels, as determined by Distance and/or such impact is resolved to Distance's satisfaction. We may change usage limits at any time, in our sole discretion, without notice.

2.5.  Distance Code. The right to use the Services includes the right to deploy Distance Code on Subscriber Properties in order to enable messaging, calling, chat and other functionality and to collect Subscriber Data for use with the Services as further described herein. Subject to all of the terms and conditions of this Agreement, Distance grants to Subscriber a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to copy and implement the Distance Code in the form provided by Distance on Subscriber Properties solely to support Subscriber's use of the Service and otherwise in accordance with the Documentation and this Agreement. Subscriber must implement Distance Code on the Subscriber Properties in order to enable the relevant features of the Services. Subscriber will implement all necessary Distance Code in strict accordance with the Documentation and other instructions provided by Distance. Subscriber acknowledges that any changes made to the Subscriber Properties after initial implementation of Distance Code may cause the Services to cease working or to function improperly and that Distance will have no responsibility for the impact of any such Subscriber changes.

2.6. Contractors and Affiliates. Subscriber may permit its employees and Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Subscriber remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement and any use of the Services by such Permitted Users is for the sole benefit of Subscriber.

2.7. General Restrictions. Subscriber will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party other than the Subscriber Properties; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Distance); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services and/or on any reports or data printed from the Services (unless otherwise expressly permitted by Distance in advance); (f) publicly disseminate information regarding the performance of the Services; (g) use the Services for competitive analysis purposes; or (h) otherwise violate our AUP.

2.8. Distance APIs. If Distance makes access to any APIs available as part of the Services, Distance reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Distance may monitor Subscriber's usage of such APIs and limit the number of calls or requests Subscriber may make if Distance believes that Subscriber's usage is in breach of this Agreement or may negatively affect the security, operability, or integrity of the Services (or otherwise impose liability on Distance).

2.9. Trial Subscriptions. If Subscriber receives free access or a trial or evaluation subscription to the Service (a “Trial Subscription"), then Subscriber may use the Services in accordance with the terms and conditions of this Section (and any other supplemental trial terms agreed by Subscriber) for a period of fourteen (14) days or such other period granted by Distance (the “Trial Period"). Trial Subscriptions are permitted solely for Subscriber's evaluation to determine whether to purchase a paid subscription to the Services or an upgrade to a service plan. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term and may be subject to usage limits. If Subscriber does not enter into a paid Subscription Term prior to the expiration of the Trial Period, this Agreement and Subscriber's right to access and use the Services will terminate at the end of the Trial Period, except as otherwise set forth herein. If stated in the Order Form or Additional Product Terms for a specific Service or otherwise communicated in advance by Distance to Subscriber, a paid Subscription Term will commence automatically once the Trial Period expires, and Subscriber will be charged for any continued use of the Services. Distance has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DISTANCE WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.

2.10. Beta Offerings. Subscriber may choose to use Beta Offerings in its sole discretion. Use of Beta Offerings may be subject to additional terms. Distance, in its discretion, may offer a Beta Offering with or without charge. Distance reserves the right to start charging and/or modify the pricing for a Beta Offering upon prior written notice to Subscriber. Beta Offerings may be changed at any time without notice and may not be maintained and/or become generally available. Beta Offerings are to be used for Subscriber's internal testing and evaluation purposes only and are not subject to the same security measures specified in the Security Policy. Distance will have no liability arising out of or in connection with Beta Offerings and disclaims any warranty, indemnity, support, SLA, or other obligations with respect to its Beta Offerings. SUBSCRIBER USES BETA OFFERINGS “AS IS” AND AT ITS OWN RISK.

3. SUBSCRIBER DATA AND SUBSCRIBER OBLIGATIONS

3.1. Data Processing by Distance. All data processing activities carried out as part of the Services will be governed by the Data Processing Addendum (“DPA") incorporated by reference herein.

3.2. Rights in Subscriber Data and Subscriber Trademarks. As between the parties, Subscriber will retain all of Subscriber's Intellectual Property Rights in and to the Subscriber Data and Subscriber Trademarks provided to Distance. Subject to the terms of this Agreement, Subscriber hereby grants to Distance a non-exclusive, worldwide, royalty-free right to access, use, publish, copy and display the Subscriber Data and Subscriber Trademarks in order to provide the Services to Subscriber (including without limitation in the course of providing End Customer Communications).

3.3. Storage of Subscriber Data. Distance does not provide an archiving service. Distance agrees only that it will not intentionally delete any Subscriber Data from the Services prior to termination of Subscriber's applicable Subscription Term and expressly disclaims all other obligations with respect to storage.

3.4. Anonymized Data. Notwithstanding anything to the contrary herein, Subscriber agrees that Distance may use: certain technical and other data about Subscribers and End Customers' use of the Services; and/or Subscriber Data, which, in all cases, is anonymized to remove any personal data of End Customers (“Anonymized Data") to analyze, improve, support and operate the Services during and after the term of this Agreement, and Subscriber agrees that Distance is permitted to anonymize Subscriber Data to use for the aforementioned purposes.

3.5. Subscriber Obligations.

a) In General. Subscriber is solely responsible for the accuracy, content and legality of all Subscriber Data and Subscriber Knowledge Base. Subscriber represents and warrants to Distance that Subscriber has all necessary rights, consents and permissions to collect, share and use all Subscriber Data as contemplated in this Agreement (including granting Distance the rights under Section 3) and to allow Distance to make the End User Communications and that no Subscriber Data will violate or infringe: (i) any third party Intellectual Property Rights or, publicity, privacy, or other rights, (ii) any Laws, or (iii) any terms of service, privacy or other policies and/or any other agreements governing the Subscriber Properties or Subscriber's accounts with any Third-Party Platforms. Subscriber will be fully responsible for any Subscriber Data submitted to the Services by any Person as if it was submitted by Subscriber.

b) No Sensitive Personal Information.  Subscriber specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Subscriber acknowledges that Distance is not a payment card processor and that the Services are not PCI DSS compliant. Subscriber acknowledges that Distance is not subject to any additional obligations that may apply to any Sensitive Personal Information submitted to the Services in contravention of this section.

c) Compliance with Laws. Subscriber agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Subscriber will ensure that it obtains all required consents and provides all required notifications to End Customers as may be required under any applicable laws to use the Services to engage in End Customer Communications and will not engage, and will not use the Services to cause Distance to engage, in any unsolicited advertising, marketing, or other activities using the Services or any activities that, to the extent applicable, violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other applicable anti-spam laws and regulations.

d) Disclosures on Subscriber Properties. Subscriber acknowledges that the Distance Code causes a unique cookie ID to be associated with each person who accesses the Subscriber Properties, which cookie ID enables Distance to provide the Services. Subscriber will include on each Subscriber Property a link to a privacy policy that discloses Subscriber's use of third party tracking technology to collect data about End Customers and how, and for what purposes, the data collected will be used or shared with third parties. Subscriber must also provide End Customers with clear and comprehensive information about the storing and accessing of cookies or other information on the End Customers' devices where such activity occurs in connection with the Services and as required by applicable Laws. For clarity, as between Subscriber and Distance, Subscriber will be solely responsible for obtaining the necessary clearances, consents and approvals from End Customers under all applicable Laws.

3.6. Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Distance from and against any and all third party (including, without limitation, End Customers) claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising from or relating to any Subscriber Data, Subscriber's use of a Third Party Messaging App, Third-Party Platform or breach or alleged breach by Subscriber of Section 3.5 (Subscriber Obligations). This indemnification obligation is subject to Subscriber receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Subscriber to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Distance at Subscriber's expense. Notwithstanding the foregoing sentence, (a) Distance may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Subscriber will not settle any claim without Distance's prior written consent, unless the settlement fully and unconditionally releases Distance and does not require Distance to pay any amount, take any action, or admit any liability.

4. SECURITY

Distance agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access to or use of the Services. However, Distance will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Distance's control.

5. THIRD-PARTY PLATFORMS, THIRD PARTY MESSAGING APPS AND AI TERMS

5.1. Integration with Third Party Platforms. The Services may support integrations with certain Third-Party Platforms. Subscriber may import and export Subscriber Data between the Services and certain Third-Party Platforms through supported integrations. In order for the Services to communicate with such Third-Party Platforms, Subscriber may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Subscriber authorizes Distance to access Subscriber's accounts with such Third-Party Platform for the purposes described in this Agreement. Subscriber is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Subscriber acknowledges and agrees that Distance has no responsibility or liability for any Third-Party Platform, including, without limitation, any beta releases or pre-release features of a Third-Party Platform, or how a Third-Party Platform uses or processes Subscriber Data after it is exported to such Third-Party Platform. Distance does not guarantee that the Services will maintain integrations with any Third-Party Platform, and Distance may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Subscriber. For clarity, this Agreement governs Subscriber's use of and access to the Services, even if accessed through an integration with a Third-Party Platform.

5.2. Third Party Messaging Apps. Subscriber represents and warrants that Subscriber has agreed to the terms of service associated with any Third Party Messaging App(s) and has created, or has authorized Distance to create on Subscriber's behalf, a Third Party Messaging App account in accordance with such terms and conditions, which govern Subscriber's use of such Third Party Messaging App account. Distance will have no liability for and the Third Party Messaging App provider is solely responsible for the Third Party Messaging App's network, functionality, clients, and APIs.

5.3 AI Terms. Distance offers its customers a number of different AI products/features, including those that are powered by large language models (LLM) provided by third party companies (“AI Products”). Distance reserves the right to update the list of AI Products from time to time. Any data, content and information (in any format) submitted to an AI Product by Customer, its Permitted Users and/or People, including, but not limited to, conversation data and queries (including any personal data contained therein) (“Inputs”) and results generated by an AI Product based on such Inputs (“Outputs”) are deemed Customer Data under the Agreement and subject to the rights, restrictions and obligations applicable thereto. Customer will only provide and/or instruct Distance to use Input and Output for AI Products where the Customer is authorized to provide such content to Distance for the purposes set out in the Agreement. Third parties may submit information or materials to an AI Product that generate results that are identical or similar to Outputs (“Third-Party Results”), and Customer acknowledges it has no right, title or interest in or to any Third-Party Results. Output (whether generated by an AI Product or by a human on behalf of Distance) may contain material inaccuracies and may not reflect correct, current or complete information. Distance makes no representations or warranties and provides no indemnities with respect to Output.  You will ensure that Output is not falsely represented as being human-generated. Customer permits Third Party LLM Provider to use Input and Output or other Customer Data submitted to an AI Product as necessary to provide the AI Product, comply with applicable Laws, and enforce its respective policies (as specified in section 8.1). Distance restricts Third Party LLM Providers from using Customer Data for training or otherwise improving Third Party LLM Provider's services.

6. OWNERSHIP

6.1. Distance Technology. This is a subscription agreement for access to and use of the Services. Subscriber acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase", “sale” or like terms in this Agreement, no ownership rights are being conveyed to Subscriber under this Agreement. Subscriber agrees that Distance or its suppliers retain all right, title and interest (including all Intellectual Property Rights) in and to the Services and all Documentation, integrations with the Services, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including any Feedback (collectively, “Distance Technology"). Except as expressly set forth in this Agreement, no rights in any Distance Technology are granted to Subscriber.

6.2. Feedback. Subscriber, from time to time, may submit Feedback to Distance. Distance may freely use or exploit Feedback in connection with the Services and Distance Technology. Subscriber hereby grants to Distance a perpetual, non-exclusive, transferable, irrevocable, worldwide, royalty-free license (with rights to sublicense) to make, use, sell, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose and otherwise commercially exploit the Feedback.

7. FEES & PAYMENT

7.1.  Fees and Payment. All subscriptions terms, fees and payment terms are as set forth in the applicable Order Form.  Fees may be subject to usage limitations, with overage costs where those limitations are exceeded. Changes to subscription tiers can only be implemented on the next billing cycle. Distance reserves the right to adjust pricing for any service plan and/or any Service(s) to the then-current list price upon the start of any renewal term. In addition to any subscription fee, if Subscriber uses any Services that are subject to additional usage charges and/or if Subscriber's actual usage exceeds Subscriber's contracted usage quantity, Subscriber will be charged additional usage fees (calculated based on published pricing and/or applicable unit price set forth in the Order Form).

7.2 Taxes. Except as expressly set forth in this Agreement, all fees are non-refundable. Subscriber is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. Distance will invoice Subscriber for Taxes as well as any legally required fees arising from Subscriber's use of Services if Distance believes it has a legal obligation to do so, and Subscriber will pay such Taxes and fees if invoiced. If Subscriber is required by Law to withhold any Taxes from Subscriber's payment, the fees payable by Subscriber will be increased as necessary so that after making any required withholdings, Distance receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

7.4. Suspension of Service. If Subscriber's account is overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Distance reserves the right to suspend Subscriber's access to the applicable Service (and any related services) without liability to Subscriber until such amounts are paid in full. Distance also reserves the right to suspend Subscriber's access to the Services, without liability, if Subscriber's use of the Services is in violation of the AUP or this Agreement.

8. TERM AND TERMINATION

8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of the last to expire Subscription Term under any Order Form, unless earlier terminated as set forth herein.

8.2 Renewal of Subscription Term. The term of each subscription shall be as specified in the applicable Order Form.  Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal  of promotional or one-time priced subscriptions will be at Distance’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

8.3. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

8.4. Effect of Termination. Upon any expiration or termination of this Agreement, Subscriber will immediately cease any and all use of and access to all Services (including any and all related Distance Technology) and delete (or, at Distance's request, return) any and all copies of the Documentation, any Distance passwords or access codes and any other Distance Confidential Information in its possession. Subscriber acknowledges that following termination, it will have no further access to any Subscriber Data input into any Service, and that Distance may delete any such data as may have been stored by Distance at any time. Except where an exclusive remedy is specified, the exercise by either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

8.5. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 2.9 (Trial Subscriptions), 2.10 (Beta Offerings), 3.3 (Storage of Subscriber Data), 3.4 (Anonymized Data), 3.6 (Indemnification by Subscriber), 6 (Ownership), 7.1 (Fees and Payment), 8.3 (Effect of Termination), 8.4 (Survival), 9.2 (Warranty Disclaimer), 10 (Limitation of Liability), 12 (Confidential Information) and 14 (General Terms).

9. LIMITED WARRANTY

9.1. Limited Warranty. Distance warrants, for Subscriber's benefit only, that each Service will operate in substantial conformity with the applicable Documentation, save that Distance makes no representations or warranties in respect of any End Customer Communications.  Distance's sole liability (and Subscriber's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Subscriber, for Distance to use commercially reasonable efforts to correct the reported non-conformity, or if Distance determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Subscriber will receive as its sole remedy a refund of any fees Subscriber has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Subscriber makes a claim within thirty (30) days of the date on which Subscriber first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) if Services are provided to Subscriber to use on a no-charge, trial, beta or evaluation basis.

9.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL SERVICES ARE PROVIDED “AS IS". NEITHER DISTANCE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DISTANCE DOES NOT WARRANT THAT SUBSCRIBER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES DISTANCE WARRANT THAT IT WILL REVIEW THE SUBSCRIBER DATA FOR ACCURACY. DISTANCE SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES, NOR SHALL DISTANCE BE RESPONSIBLE FOR ANY END CUSTOMER COMMUNICATIONS OR ANY OUTCOME, LIABILITY, RESPONSIBILITY, OBLIGATION OR COMMITMENT THAT MAY ARISE FROM ANY END CUSTOMER COMMUNICATIONS. DISTANCE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS, THIRD PARTY APPS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF DISTANCE. SUBSCRIBER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

10. LIMITATION OF LIABILITY

10.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, LOSS OF REVENUE, DAMAGE TO GOODWILL, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

10.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), DISTANCE’S ENTIRE LIABILITY TO SUBSCRIBER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (I) $100; OR  (II) THE AMOUNT ACTUALLY PAID OR PAYABLE BY SUBSCRIBER TO DISTANCE UNDER THE AGREEMENT GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

10.3. Excluded Claims.” Excluded Claims” means any claim arising (a) from Subscriber's breach of Section 2.7 (General Restrictions); (b) under Section 3.5 (Subscriber Obligations) or 3.6 (Indemnification by Subscriber); or (c) from a party's breach of its obligations in Section 12 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service or relating to Subscriber Data).

10.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

10.5. Applicable Law. The limitations on liability under this Section 12 will not apply to the extent such liability cannot be limited under applicable law.

11. INDEMNIFICATION

Distance will defend Subscriber from and against any claim by a third party alleging that the Service infringes any Intellectual Property Rights (provided that no indemnity is provided to the extent that such claim arises from any Subscriber Data, Subscriber Knowledge Base or Subscriber Trademark) and will indemnify and hold harmless Subscriber from and against any damages and costs finally awarded against Subscriber or agreed in settlement by Distance (including reasonable attorneys' fees) resulting from such claim, provided that Distance will have received from Subscriber: (i) prompt written notice of such claim (but in any event notice in sufficient time for Distance to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Subscriber. If Subscriber's use of a Service is (or in Distance's opinion is likely to be) enjoined, if required by settlement or if Distance determines such actions are reasonably necessary to avoid material liability, Distance may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Subscriber the right to continue using such Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Subscriber the fees paid by Subscriber for the portion of the Subscription Term that was paid by Subscriber but not rendered by Distance. The foregoing indemnification obligation of Distance will not apply: (1) if such Service is modified by any party other than Distance, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by Distance, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Service; (4) to any action arising as a result of Subscriber Data or any third-party deliverables or components contained within such Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; (6) to any action arising from Subscriber's use of Third Party Messaging Apps; or (7) if Subscriber settles or makes any admissions with respect to a claim without Distance's prior written consent. THIS SECTION 13 SETS FORTH DISTANCE'S AND ITS SUPPLIERS' SOLE LIABILITY AND SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

12. CONFIDENTIAL INFORMATION

Each party (as “Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party") constitute the confidential property of the Disclosing Party (“Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Distance Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Distance without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Distance, the subcontractors referenced in Section 16.8 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 14. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

13. PUBLICITY

Distance may use Subscriber's name and logo to identify Subscriber as a subscriber of the Services, including on Distance's public website.

14. GENERAL TERMS

14.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Subscriber may not assign this Agreement without the advance written consent of the other party. Either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt by Subscriber to transfer or assign this Agreement except as expressly authorized under this Section 14.1 will be null and void.

14.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.

14.3. Governing Law; Dispute Resolution.

a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, (“Dispute"), the parties shall first use their best efforts to resolve the Dispute directly between the parties. If the parties are unable to reach a resolution of the Dispute within thirty (30) days of providing written notice to the other of the existence and nature of such  Dispute and inviting discussions to resolve such Dispute, then the Dispute may subsequently be resolved in a court of law as set forth below.

b) Choice of Law and Jurisdiction. For any claim which is not subject to this dispute resolution provision, Subscriber agrees to submit and consent to the personal and exclusive jurisdiction in, and the exclusive venue of, the provincial and federal courts located in Calgary, Alberta, Canada. in any dispute, the laws of Canada and Alberta law shall apply.

c) Injunctive Relief. Notwithstanding the above provisions, Distance may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

14.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email on the first business day after we send it. You agree that any electronic communication satisfies any applicable legal communication requirements, including that such communications be in writing.

14.5. Waivers.  No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Subscriber that may be referenced in the Order Form or otherwise issued by Subscriber will supersede or modify the terms and conditions of this Agreement (regardless of any statement to the contrary in such document), and any such document relating to this Agreement will be for Subscriber's convenience and administrative purposes only and will have no legal effect.

14.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Subscriber acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved Subscriber experience Distance may make changes to the Services, and Distance will update the applicable Documentation accordingly. The support and service level availability terms described in the Security Policy, the Support Policy, and the SLA may be updated from time to time upon reasonable notice to Subscriber to reflect process improvements or changing practices (but the modifications will not materially decrease Distance's obligations as compared to those reflected in such terms as of the Effective Date).

14.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

14.9. Subpoenas. Nothing in this Agreement prevents Distance from disclosing Subscriber Data to the extent required by law, subpoenas, or court orders, but Distance will use commercially reasonable efforts to notify Subscriber where permitted to do so.

14.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent

14.11. Export Control and Economic Sanctions. Each party: (i) agrees to comply with all export control and economic sanctions and any relevant import laws and regulations of the United States and other applicable jurisdictions, and (ii) represents and warrants that it is not listed on any U.S. or other government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government export control embargo or economic sanctions. Without limiting the foregoing, (a) Subscriber will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export control or economic sanction, prohibition or restriction, and (b) Subscriber will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations or that is controlled under any Export Control Classification Number (other than EAR99) on the Commerce Control List of the Export Administration Regulations.