Mango Systems
Terms and Conditions
Last Updated: March 7, 2025
PLEASE READ THESE TERMS CAREFULLY AS THEY MAY HAVE CHANGED SINCE THE LAST VISIT.
These Terms and Conditions (the “T&Cs”) set out the terms and conditions under which the Services (as defined below) are provided. Any order form, service order, statement of work, insertion order or any other document that incorporates these T&Cs shall be referenced herein as “Order”. For clarity, the Order may be in the form of a digital document presented to you on the Management Platform (as defined below). The Orders, together with these T&Cs, shall be referred collectively as “Agreement”.
The acceptance of an Order incorporating these T&Cs by reference creates a binding agreement between the party listed on the Order (“Customer”) and Mango Systems Inc. (“Mango”). Mango reserves the right to change these T&Cs from time to time. The date of any change to these T&Cs shall be indicated above. If Customer and Mango have entered into an Order with a version of these T&Cs attached, such version of the T&Cs shall apply to the Services purchased by Customer.
NOW THEREFORE, for good and valuable consideration, of which the receipt and sufficiency are acknowledged, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND SCHEDULES
1.1 Definitions.
(a) "Affiliate" means a Party's direct or indirect parent or subsidiary corporation (or other entity), or any corporation (or other entity) with which the Party is under common control.
(b) “Aggregated Data” has the meaning set out in Section 6.4.
(c) "Business Day" means every day except Saturday, Sunday and any statutory holidays in the province of Ontario.
(d) “Confidential Information” means any and all information disclosed by the disclosing Party to the receiving Party in connection with the Services relating to its products, services, customers, marketing, research and development, business and finances, including all technical information, 2 data, documentation, code, software, security measures and procedures and copies thereof, which is either explicitly marked or noted at the time of disclosure as confidential or which a reasonable party would deem to be non-public and confidential regarding the circumstances surrounding disclosure. Non-public features of the Software shall be considered Confidential Information of Mango. Confidential Information shall not include information which a receiving Party can establish to have: (i) become publicly known through no action on the receiving Party’s part; (ii) been lawfully known by the receiving Party prior to receipt; (iii) been independently developed by the receiving Party without reference to any information received from the disclosing Party; or (iv) been approved for public release by the written authorization of the disclosing Party. Specific information received shall not be deemed to fall within the exceptions to Confidential Information set forth above merely because it is embraced by general information within the exception.
(e) “Customer’s Indemnity Obligations” has the meaning set out in Section 7.4.
(f) “Customer Content” has the meaning set out in Section 2.4.
(g) “Customer Order” has the meaning set out in Section 10.13.
(h) “Display Companion App” means Mango’s software application installed on the Display Player and which works in conjunction with the Software for the management of digital displays.
(i) “Display Player” means the computing unit that controls what is displayed on the digital displays.
(j) “Dispute” has the meaning set out in Section 10.9(a).
(k) “Documentation” means any written materials prepared by Mango containing information relating to the use of the Software, such as guidelines and feature explanations provided or made available to Customer and/or its End-Users.
(l) “End User” and “End Users” have the meaning set out in Section 2.5(a).
(m) “Expenses” has the meaning set out in Section 4.2(b).
(n) “Feedback” has the meaning set out in Section 6.5.
(o) "Force Majeure" means any failure or delay in the performance by a Party of its obligations under these T&Cs, if any, to the extent such failure or delay: (a) is caused, directly or indirectly, without fault by the non-performing Party, by fire, flood, hurricane, earthquake, acts of God, pandemic, epidemic, war, terrorism, explosion, riots, civil disorders, rebellions or revolutions, lawful acts of governmental authorities, internet service provider failures or delays, criminal acts of third parties, or any other cause beyond the reasonable control of the non-performing Party; and (b) could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing Party through the use of alternate sources, work-around plans or other means.
(p) “Indemnity Claim” has the meaning set out in Section 7.4.
(q) “Initial Subscription Term” has the meaning set out in Section 9.1.
(r) “Intellectual Property Rights" means all intellectual property and other proprietary rights, including all rights provided under trade secret law, patent law, copyright law, trademark or service mark law, design patent or industrial design law, semi-conductor chip or mask work law, and any other statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how, whether registered or not and including all applications therefor.
(s) “IP Claim” has the meaning set out in Section 7.1.
(t) “Managed Display” and “Managed Displays” have the meaning set out in Section 2.1(a).
(u) “Mango’s Indemnity Obligations” has the meaning set out in Section 7.1.
(v) “Minimum Displays” has the meaning set out in Section 4.1(b)(i).
(w) “Non-Arbitrable Dispute” has the meaning set out in Section 10.9(b).
(x) “Order” has the meaning set out in the preamble of these T&Cs.
(y) “Party” means either Mango or Customer and “Parties” refers to both Mango and Customer.
(z) “Personnel” means an entity’s employees, contractors, or subcontractors.
(aa) “Professional Services” has the meaning set out in Section 3.1.
(bb) “Renewal Subscription Term” has the meaning set out in Section 9.1.
(cc) “Service Fees” has the meaning set out in Section 4.2(a).
(dd) “Service Level Agreement” is the level of support that Mango agrees to provide in supporting the Software, which is outlined in https://www.onmango.com/service-level-agreement.
(ee) “Services” means the Subscription to the Management Software, the limited license to the Display Companion App, Professional Services and any support provided in accordance with these T&Cs.
(ff) “Software” means Mango’s proprietary cloud-based digital display management software (the “Management Platform”) and the Display Companion App. Reference to “Software” includes all front-end, back-end and other related technologies, and all updates, upgrades, patches, fixes, modifications, and enhancements made thereto. It shall further include all methods, processes, data, information, models, wrappers and other business property related to and generated from the software application.
(gg) “Software Updates” has the meaning set out in Section 2.5(c).
(hh) “Subscription” has the meaning set out in Section 2.1(a).
(ii) “Subscription Fees” has the meaning set out in Section 4.1(a).
(jj) “Subscription Term” has the meaning set out in Section 9.1.
(kk) “Term” has the meaning set out in Section 9.3.
(ll) “Third Party Services” and “Third Party Service Providers” have the meaning set out in Section 6.3.
1.2 Interpretation.
(a) Currency. Unless stated otherwise in this Agreement, all references to currency shall be in United States Dollars. 5
(b) Headings. Headings of sections are inserted for convenience of reference only and do not affect the construction or interpretation of this Agreement.
(c) "Includes" or "Including". Where the word "including" or "includes" is used in this Agreement, it means "including (or includes) without limitation".
(d) No Strict Construction. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party.
(e) Number and Gender. Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
(f) Time Periods. Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the day on which the period commences and including the day on which the period ends and by extending the period to the next Business Day following if the last day of the period is not a Business Day.
(g) "Written" or "in writing". Unless expressly stated otherwise, where any notice, demand, consent or communication is required "in writing" or in written form, either Party may provide such notice, demand, consent or communication in written form and delivered by courier, registered mail or e-mail.
(h) Interpretation. In the event of any conflict between an Order and these T&Cs, the conflict shall be resolved in favour of these T&Cs, except if the Order clearly states that it amends or prevails over these T&Cs.
ARTICLE 2
SUBSCRIPTION
2.1 Subscription.
(a) Provided that Customer is in compliance with these T&Cs, Customer is provided a subscription to access and use the Management Platform (the “Subscription”). The Subscription permits Customer to access and use the Management Platform to manage the number of digital displays added thereto (each a “Managed Display”, and collectively, the “Managed 6 Displays”). Additional details of the Subscription may be stated in the Order.
(b) In conjunction with the Management Platform, Customer shall install the Display Companion App on the Display Players of the Managed Displays. The Display Companion App is required to enable the Management Platform to control the Managed Displays and must be on Display Players compatible with the Display Companion App in order to utilize all the available features and functionalities of the Management Platform. A limited license to the Display Companion App is provided for Customer to reproduce and use the Display Companion App up to the number of Managed Displays registered on the Management Platform.
(c) Mango agrees to provide support as stated in its Service Level Agreement.
2.2 Affiliates. Customer's Affiliate(s) may access the Management Platform under the Subscription; provided that, (i) Customer ensures that its Affiliates and their End Users comply with these T&Cs and all restrictions, limitations, obligations, disclaimers and other terms and conditions of these T&Cs apply to such Affiliates and their End Users, (ii) Customer communicates to Mango the identities of such Affiliates prior to their use of the Management Platform, and (iii) Customer remains responsible for all actions, inactions and violations of these T&Cs by such Affiliates and their End Users, unless a separate Order is entered into with such Affiliate.
2.3 Acceptable Use.
(a) Customer shall use the Software for only the following purposes: (i) internal use to manage its own digital displays, or (ii) to manage the digital displays of its clients.
(b) Customer shall not and shall ensure that its End Users do not: (i) modify, translate or copy (except copying the Display Companion App as part of the download and installation process) any part of the Software; (ii) reverse engineer, decompile or dissemble any part of the Software, create derivative works based on any part of the Software, or attempt to derive the source code of any part of the Software; (iii) rent, lease or use the Software to operate a service bureau or application service provider; (iv) use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Software or to otherwise engage in denial of service attacks; (v) impose an unreasonable or disproportionately large load 7 on the Software so as to cause the Software or the underlying infrastructure to be unavailable, inoperable or unstable; (vi) rely on the Software in any application where a failure could cause personal injury or death or damages to property; (vii) remove any proprietary notices, labels or marks within any part of the Software; or (viii) use the Software in a manner inconsistent with these T&Cs, or in a manner contrary to applicable law, rule or regulation.
2.4 Customer Content. “Customer Content” refers to any text, files, images, videos, or any other information that is uploaded or used with the Management Platform by Customer. By uploading or using such Customer Content, Customer (i) represents that it has the necessary rights to the Customer Content and to be used with the Services, and (ii) hereby grants to Mango, during the Term, a limited, royalty-free, non-exclusive, nontransferable, non-assignable license to reproduce, modify, create derivative works and use the Customer Content in connection with the Services.
2.5 Customer’s Obligations.
(a) Customer may provide access to the Management Platform to its Personnel and clients who require such access (each an “End User”, and collectively, the “End Users”), up to the maximum number of End Users permitted on the Order, if any. Customer shall ensure that End Users are aware of all the terms and conditions set out in these T&Cs and adhere to any end-user agreement contained in the Management Platform. Customer shall be responsible for all actions and inactions of its End Users.
(b) End Users must keep information about their accounts (e.g. ID and password) confidential and protect the integrity and security of their accounts. If an End User detects any suspicious activities on his/her account, it is the responsibility of the End User to promptly report such activities to Customer and if required, to Mango. Mango has the right, but not the obligation, to deactivate any account identified in such notification. It is the responsibility of Customer to make its End Users aware of all the obligations set out in these T&Cs and provide the necessary training, communication and information required for End Users to adhere to this section. Mango is not liable for any loss or damage arising from any activities on any account, whether or not compromised, and whether or not Customer or the affected End User communicated any suspicious activities in accordance with this section.
(c) If Mango makes available updates, patches or new versions of the Display Companion App (the “Software Updates”), then Customer shall promptly download and install the Software Updates, or otherwise ensure that such Software Updates are applied to the applicable Display Player. Failure to apply the Software Updates may result in degradation of its performance or functionality, or the inability for Mango to provide any support.
ARTICLE 3
PROFESSIONAL SERVICES
3.1 Professional Services. Mango may perform implementation, integration, training, consultation or other services related to the Software and Third Party Services as set out in an Order (the “Professional Services”). Mango will provide such resources and utilize such Personnel as Mango deems necessary to perform the Professional Services. Mango will use commercially reasonable efforts to meet the delivery schedules set forth in the Order, and Customer agrees to cooperate in good faith to allow Mango to achieve completion of such Professional Services in a timely manner, including by providing materials and assistance as reasonably requested by Mango. If achievement of any particular milestone is dependent upon performance of tasks by Customer, its Personnel and/or by a third party outside of Mango’s control, and the Customer, its Personnel and/or the third party is responsible for any delay, the date of the milestone shall be automatically adjusted to account for such delay.
3.2 Changes. If any changes to the Professional Services are required, the Parties shall document such changes in writing. Any changes that result in a variance of Service Fees and/or Expenses shall be agreed to in writing.
ARTICLE 4
FEES AND PAYMENT
4.1 Subscription Fees.
(a) Unless stated otherwise in the applicable Order, fees for the Subscription shall be based on the number of Managed Displays registered for management on the Management Platform at the rate stated on the Order or as otherwise changed in accordance with Section 9.1 (the "Subscription Fees").
(b) For the purpose of calculating the Subscription Fees, the number of Managed Displays registered may only be reduced as follows: 9
(i) During the Initial Subscription Term, the minimum number of Managed Displays shall be stated in the Order (the “Minimum Displays”). At each Renewal Subscription Term, the Minimum Displays shall be updated to the number of Managed Displays registered on the Management Platform on day 1 of such Renewal Subscription Term.
(ii) During the Initial Subscription Term and the applicable Renewal Subscription Term, for the purpose of calculating the Subscription Fees, Customer many not reduce the number of Managed Displays below the Minimum Displays.
4.2 Professional Services Fees.
(a) Fees for the Professional Services, along with any schedule of payments, shall be provided in the applicable Order (the “Service Fees”).
(b) In the performance of Professional Services, if Mango needs to incur reasonable out-of-pocket expenses, such as travel costs, that are chargeable to Customer, such expenses shall not be incurred without the prior written consent of Customer (the “Expenses”).
(c) If an Order indicates that the Service Fees are an estimated amount, Customer acknowledges and agrees that the actual Service Fees may vary. While Mango agrees to exercise reasonable efforts to provide an accurate estimate of the actual Service Fees for the Professional Services, the actual Service Fees may exceed the estimated amount. If Mango anticipates the actual Service Fees to be higher than the estimated Service Fees by ten percent (10%), such increases in excess of the 10% shall be agreed to in writing by the Parties prior to Mango incurring such increased Service Fees.
(d) If an Order sets out a schedule of payments but the performance of the Professional Services is delayed through no fault of Mango, which persists for more than fifteen (15) days, Mango reserves the right to invoice Customer for all Service Fees and Expenses incurred but not yet invoiced up to the date of the creation of such invoice.
4.3 Invoice and Payment.
(a) Unless stated otherwise in the applicable Order, Subscription Fees shall be billed in advance of the billing period and due within thirty (30) days of the date of the invoice.
(b) For Professional Services, unless otherwise stated in the Order, 50% of the Service Fees shall be invoiced in advance upon execution of the applicable Order and the remaining 50% of the Service Fees shall be invoiced upon completion of the Professional Services.
(c) All amounts due under these T&Cs are exclusive of sales, use, consumption and value add taxes, which shall be the responsibility of the Customer, and all such amounts shall be due in full without deduction or set off.
(d) In the event of payment after the due date, interest shall be payable on the overdue amount at the rate of one and one half (1.5%) percent per month, calculated and compounded monthly, or the maximum rate permitted by law, whichever is less, calculated from the due date to the date of payment. All prepaid fees are non-refundable.
(e) If any invoices are paid using a credit card, any credit card processing fee incurred by Mango, up to the maximum amount permitted by law, may be applied.
ARTICLE 5
CONFIDENTIALITY, NON-DISCLOSURE
5.1 Non-Disclosure. Each Party agrees that it will not: (a) make use of the Confidential Information of the disclosing Party other than to perform its obligations under these T&Cs; or (b) in any way disclose any Confidential Information of the disclosing Party to any person or entity, other than its own Personnel to the extent necessary to give effect to these T&Cs and only to such Personnel who have agreed to be bound by confidentiality obligations no less protective than those set forth in these T&Cs. Each receiving Party is responsible for any breach of these T&Cs by any person to whom it provides, or provides access to, Confidential Information. Each receiving Party shall safeguard the disclosing Party’s Confidential Information using the same standard it employs to safeguard its own confidential information of like kind, but in no event less than a commercially reasonable standard of care.
5.2 Destruction of Confidential Information. At the disclosing Party's request, the receiving Party shall destroy Confidential Information of the disclosing Party in its possession or control except to the extent it would be unreasonably burdensome to destroy such information (such as archived computer records), and such information will continue to be treated as Confidential Information, notwithstanding any termination or expiration of these T&Cs. Upon the request of the disclosing Party, the receiving Party shall certify in writing that all materials containing Confidential Information of the disclosing Party have been destroyed and no further Confidential Information of the disclosing Party is in the possession or control of the receiving Party.
5.3 No Rights to Confidential Information. All Confidential Information remains the sole property of the disclosing Party and no license or other rights to Confidential Information is granted or implied by these T&Cs.
5.4 Required Disclosure. In the event that Confidential Information has been required to be disclosed in response to a valid order issued by a court, governmental or regulatory body with jurisdiction over the receiving Party, then such Confidential Information may be disclosed pursuant to such requirement so long as the Party required to disclose the Confidential Information, to the extent possible, provides the other Party with timely prior notice of such requirement and coordinates with the other Party in an effort to limit the nature and scope of such required disclosure.
ARTICLE 6
PROPRIETARY RIGHTS
6.1 Proprietary Rights of Mango. Mango retains all right, title and interest (including any Intellectual Property Rights) in the Software, Documentation, Mango’s Confidential Information and any work resulting form the Professional Services performed by Mango. Except as expressly provided in these T&Cs, Customer does not acquire any right, title and interest (including any Intellectual Property Rights) to the Software, Documentation, Mango’s Confidential Information and any work resulting form the Professional Services performed by Mango.
6.2 Proprietary Rights of Customer. All Customer Content and Customer’s Confidential Information shall belong exclusively to the Customer. Except as expressly stated herein, Mango does not acquire any right, title and interest (including any Intellectual Property Rights) in the Customer Content.
6.3 Third Party Services. The Software may include or use products and/or services from third party service providers (those products and/or services, the "Third Party Services"; those service providers, the "Third Party Service Providers"). A list of such Third Party Services are provided on www.onmango.com. Customer acknowledges and agrees that Mango makes no representations, warranties or covenants with respect to any Third Party Services and Customer’s use of the Third Party Service shall be governed by the terms and conditions applicable thereto. Customer agrees to comply with such terms and conditions and agree that Mango shall not be liable or responsible for any of the Third Party Services or the actions or inactions of the applicable Third Party Service Providers.
6.4 Aggregated Data. Mango may collect and aggregate data derived from the operation of the Software, including the Customer Content (the "Aggregated Data") and Mango may use the Aggregated Data for purposes such as operating, developing, monitoring and improving the Software and any related Mango business. Such Aggregated Data will be de-identified to exclude any information that identifies its Customers, End Users or an individual. Mango shall own all right, title and interest (including any Intellectual Property Rights) in the Aggregated Data.
6.5 Feedback. During the Term, if Customer or its Personnel make any suggestions for changes, modifications or improvements to the Software or other Services (those suggestions, the "Feedback"), all such Feedback shall be solely owned by Mango. Customer shall do (and shall cause its Personnel to do) all that is necessary to assign the ownership of such Feedback to Mango.
ARTICLE 7
INDEMNIFICATION
7.1 Indemnification Obligations of Mango. Mango shall defend Customer against any and all third party claims or demands that the Software violates a third party’s Intellectual Property Rights in Canada (an “IP Claim”) and indemnify all amounts required to be paid in a settlement approved by Mango or awarded by a court in a final, nonappealable judgment; provided: (a) Customer has promptly notified Mango of the IP Claim and Mango is not prejudiced by any delay by Customer; (b) Mango has full control over the defense of the IP Claim, provided that any settlement or resolution entered into by Mango shall not require any admission of liability or any payment by Customer; (c) Customer has not made any admission against Mango’s interests and has not agreed to any settlement of any IP Claim without Mango’s written consent; and (d) Customer cooperates with Mango in the defense of the IP Claim, at Mango’s expense. The obligation to defend and indemnify set out in this Section shall be referred to as “Mango’s Indemnity Obligations”.
7.2 Exceptions to the Indemnification Obligations. Notwithstanding Section 7.1, Mango shall be under no obligation to indemnify or defend Customer if any IP Claim arises as a result of any: (a) access or use of the Software in violation of or in a manner inconsistent with these T&Cs; (b) modification to the Software by a party other than Mango or its authorized agents, which modification has resulted in the IP Claim; (c) combination of the Software with any computer program, software, hardware or equipment where the IP Claim would not exist without such combination; (d) Customer’s failure to apply Software Updates where such Software Updates would have avoided the IP Claim; and (e) access to or use of the Software after Mango notifies Customer to discontinue such access or use.
7.3 Additional Infringement Remedies. At Mango’s sole expense and discretion, in response to any pending or potential IP Claim, Mango may: (a) procure for Customer the right to continue using the offending Software or applicable portion thereof; (b) replace or modify the offending Software or applicable portion thereof so that it is non-infringing; or (c) terminate these T&Cs, or the applicable Order, either entirely or only as it relates to the offending Software in question and refund to Customer pro rata of any prepaid Subscription Fees allocable to such part(s) of the Software that is (are) terminated.
7.4 Indemnification Obligations of Customer. Customer shall defend Mango against any and all third party claims or demands relating to (i) the Customer Content, or (ii) breach of Sections 2.3 or 6.3 (the “Indemnity Claim”), and indemnify all amounts required to be paid in a settlement approved by Customer or awarded by a court in a final, non-appealable judgement; provided: (a) Mango has promptly notified Customer of the Indemnity Claim, and Customer is not prejudiced by any delay by Mango; (b) Customer has full control over the defense of the Indemnity Claim, provided that any settlement or resolution entered into by Customer shall not require any admission of liability or any payment by Mango; (c) Mango has not made any admission against Customer’s interests and has not agreed to any settlement of any Indemnity Claim without Customer’s written consent; and (d) Mango cooperates with Customer in the defense of the Indemnity Claim, at Customer’s expense. The obligation to defend and indemnify set out in this Section shall be referred to as “Customer’s Indemnity Obligations”.
7.5 Sole Remedy. Sections 7.1 and 7.3 shall constitute Customer’s sole remedy from Mango in respect of IP Claims.
ARTICLE 8
DISCLAIMER; LIMITATION OF LIABILITY; EXCLUSIONS
8.1 WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THERE ARE NO REPRESENTATIONS OR WARRANTIES, CONDITIONS OR GUARANTEES, EXPRESS OR IMPLIED (WHETHER ARISING UNDER COMMON LAW, STATUTE, COURSE OF DEALING OR TRADE, OR OTHERWISE) RELATING TO THE SERVICES OR THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CURRENCY, ACCESSIBILITY, RELIABILITY, SECURITY, AVAILABILITY, UNINTERRUPTED USE, OR THAT THE SOFTWARE IS OR WILL BE ERROR FREE OR VIRUS FREE. MANGO SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR INACCURACY OF DATA SUFFERED BY CUSTOMER, FOR ANY LOSS, DAMAGES OR INJURY RESULTING FROM THE THIRD PARTY SERVICES, OR FOR ANY LOSS OR DAMAGES RESULTING FROM CUSTOMER CONTENT. EXCEPT TO THE EXTENT AN EXPRESS INDEMNITY IS PROVIDED IN THESE T&CS, MANGO HAS NO OBLIGATION TO INDEMNIFY, DEFEND OR HOLD HARMLESS CUSTOMER OR ANY OF ITS SUCCESSORS, ASSIGNS, SHAREHOLDERS, PARTNERS, DIRECTORS, OFFICERS, AGENTS, AFFILIATES, SUBSIDIARIES, EMPLOYEES OR CONTRACTORS, INCLUDING AGAINST CLAIMS RELATED TO PRODUCT LIABILITY OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. NO WRITTEN OR ORAL INFORMATION OR ADVICE GIVEN BY MANGO WILL CREATE ANY REPRESENTATION, WARRANTY OR CONDITION.
8.2 LIMITATION OF LIABILITY.
(a) THE PARTIES SHALL BE LIABLE ONLY FOR DIRECT DAMAGES, AND IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY LOSSES (INCLUDING LOST SALES, LOST REVENUE, LOST PROFITS, LOST DATA OR LOST CONTENT) WHATSOEVER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.
(b) THE TOTAL LIABILITY AND OBLIGATIONS OF MANGO AND ITS AFFILIATES SHALL NOT EXCEED: (i) FOR ALL CLAIMS ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO AN ORDER, THE FEES PAID BY CUSTOMER TO MANGO UNDER SUCH ORDER IN THE SIX (6) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO SUCH LIABILITY OR OBLIGATION; OR (ii) IN THE AGGREGATE FOR ALL CLAIMS ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT, THE FEES PAID PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO SUCH LIABILITY OR OBLIGATION. THE LIMITS OF LIABILITY IN THIS SECTION ARE CUMULATIVE AND NOT PER-INCIDENT.
(c) THE LIMITATIONS SET OUT IN THIS SECTION 8.2 SHALL NOT APPLY TO: (I) CUSTOMER'S BREACH OF SECTIONS 2.3 OR 2.5, OR (II) CUSTOMER'S MISUSE OR MISAPPROPRIATION OF MANGO’S INTELLECTUAL PROPERTY RIGHTS.
(d) TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 8.2 APPLY (A) TO ALL CAUSES OF ACTION, (B) WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FOR FUNDAMENTAL BREACH, HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, (C) EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE AND (D) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES IN QUESTION OR EVEN IF SUCH DAMAGES WERE FORESEEABLE.
ARTICLE 9
TERM AND TERMINATION
9.1 Subscription Term. The initial duration of the Subscription shall be stated in the Order (the “Initial Subscription Term”). Unless stated otherwise in the Order, the Subscription shall auto-renew for a duration equal to the Initial Subscription Term (each a “Renewal Subscription Term”; and, the Initial Subscription Term and all Renewal Subscription Term(s), if any, collectively, the “Subscription Term”) unless Customer has notified Mango in writing of its intention not to renew the Subscription at least thirty (30) days prior to the expiration of the Subscription Term. At renewal, Mango shall have the right to increase the Subscription Fees to the then current rate; provided that, such increases are notified at least thirty (30) days prior to the expiration of the applicable Subscription Term.
9.2 Professional Services. The Order for the Professional Services shall state the term during which such Professional Services shall be provided. Unless stated otherwise in the applicable Order, such Order shall be terminated after delivery of the Professional Services and payment of the appliable Service Fees and/or Expenses.
9.3 Term of these T&Cs. The application of these T&Cs shall commence on the effective date of the first Order that incorporates the terms and conditions of these T&Cs and shall continue until the earlier of (a) termination in accordance with these T&Cs, and (b) one year following the termination or expiration of all outstanding Orders (the "Term").
9.4 Termination for Breach. A Party may terminate these T&Cs and/or any applicable Order if the other Party materially breaches these T&Cs and/or the applicable Order. A Party shall be considered to be in material breach if any of the following events occur: (a) if the breaching Party is Customer, where Customer fails to pay any overdue invoices fifteen (15) days after Customer receives written notice of non-payment, (b) a Party makes a general assignment for the benefit of creditors, makes a written admission of its inability to pay its debts or obligations as they become due, has a petition in bankruptcy filed by or against it, a receiver or trustee of any of its property is appointed, is adjudged to be insolvent by any court having jurisdiction, or it is dissolved, liquidated or terminated; or (c) a Party breaches a material term of these T&Cs and such breach is not cured within thirty (30) days of written notice of such breach. The written notice for termination shall include a detailed explanation of the material breach justifying the termination in accordance with this Section 9.4.
9.5 Additional Termination Rights. Unless additional termination rights are provided in the Order, the Parties agree that the termination rights set out in these T&Cs shall be the exclusive rights and remedies for termination of each Party.
9.6 Suspension of Subscription. Mango may suspend any Subscription or the performance any Services, as applicable, if (i) any invoice, and any interest accrued thereon, remains unpaid after Mango has notified the Customer of an outstanding invoice, or (ii) Customer or its End Users violate the terms of these T&Cs. The exercise of this suspension right shall not be considered a breach of this Agreement by Mango.
9.7 Effect of Termination.
(a) If an Order is terminated in accordance with this Agreement,
(i) The license and/or subscription provided under such Order shall come to an end immediately, and Customer and its Personnel shall immediately stop accessing and using the applicable Software and delete all Display Company App, as applicable. All fees due and/or payable under the terminated Order, including any interest accrued thereon, shall become due immediately; and
(ii) Unless Section 9.7(b) applies, these T&Cs shall continue to apply to all remaining active Orders.
(b) If these T&Cs are terminated in accordance with this Agreement,
(i) Unless agreed otherwise in writing, all Orders shall be terminated and Section 9.7(a) shall apply accordingly; and
(ii) Any other rights granted under these T&Cs shall cease immediately.
(c) Sections 2.2(iii), 2.4(i), 2.5(b) (last sentence), and Article 1, Article 5, Article 6, Article 7, Article 8 and Article 10 shall survive termination or expiration of this Agreement.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Assignment. Without the prior written consent of Mango, Customer may not assign this Agreement or any of its rights or obligations hereunder, except to an Affiliate and provided (a) such Affiliate agrees to be bound by the terms of this Agreement and (b) Customer remains responsible for Affiliate’s compliance with this Agreement, including payment of all fees.
10.2 Press Releases; Marketing. Each Party may refer to the other Party and use its logo for the limited purpose of identifying it as a customer in sales and marketing materials. All press releases relating to the commercial relationship between the Parties shall require the prior written consent of each Party.
10.3 Entire Agreement; Amendment. This Agreement contains the entire understanding of the Parties hereto on the subject matter hereof and supersedes any previous agreements or understandings, written or oral, in effect between the Parties relating to the subject matter hereof. Except for Mango’s right to modify these T&Cs from time to time, no amendment or modification of this Agreement shall be effective or binding unless agreed to in writing by both Parties.
10.4 Waiver of Breach. The waiver of any breach of this Agreement, or the failure of a Party to exercise or enforce any right under this Agreement, shall in no event constitute a waiver of any other breach, whether similar or dissimilar in nature, or prevent the exercise or enforcement of any right under this Agreement.
10.5 Rights and Remedies. In the event of any breach of this Agreement, except as expressly stated in this Agreement, the rights and remedies of the Parties provided for in this Agreement shall not be exclusive or exhaustive, and are in addition to any other rights and remedies available at law or in equity, including injunctive relief.
10.6 Notices. Any notice required or otherwise provided for in this Agreement shall be given to Mango or Customer, as the case may be, at the physical or e-mail address set forth on the Order, or as updated from time to time pursuant to a notice provided pursuant to this Section, with a copy to any individuals with whom the Parties typically communicate.
10.7 Severability. If any provision of this Agreement is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the remaining terms and conditions of this Agreement shall be unimpaired and the Parties shall substitute a valid, legal and enforceable provision as close in legal and economic consequence as possible to the provision being struck or considered unenforceable. If the limitation of liability set forth in this Agreement is limited by law, then Mango’s ’s liability will be limited to the greatest extent permitted by law.
10.8 Force Majeure. Except for payment and confidentiality obligations, neither Party shall be liable for any delay or failure to perform its obligations in this Agreement attributable to Force Majeure.
10.9 Dispute Resolution Procedure.
(a) In the event of any dispute or disagreement between the Parties with respect to the interpretation of any provision hereof, the performance of either Party hereunder, or any other matter that is in dispute between the Parties arising from or in connection with or related to this Agreement ("Dispute"), upon the written request of either Party, the Parties will meet for the purpose of resolving such Dispute. The Parties agree to discuss the Dispute and negotiate in good faith without the necessity of any formal proceedings. If the Parties are unable to resolve the Dispute within fifteen (15) Business Days, either Party may submit the matter to final and binding arbitration.
(b) Unless otherwise agreed in writing by the Parties, Disputes relating to the following matters or requesting the following types of relief will not be resolved by final and binding arbitration: (i) ownership or infringement of Intellectual Property Rights; (ii) claims related to Confidential Information; (iii) claims in respect of death or bodily injury; (iv) claims for contribution or indemnity; or (v) interim or interlocutory claims for injunctive relief ("NonArbitrable Dispute").
(c) All other Disputes hereunder that cannot be settled in the manner hereinbefore described will be settled by final and binding arbitration pursuant to the provisions of the International Commercial Arbitration Act (Ontario). The arbitrator will decide any issues submitted in accordance with the provisions and commercial purposes of the Agreement, and will not have the power to award damages in excess of the limitations set forth in, or excluded by, the Agreement. Judgement upon the award rendered in any such arbitration may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and enforcement, as the law of such jurisdiction may require or allow.
(d) The fees and expenses of the arbitrator and costs of the arbitration facilities will be periodically billed to and paid in equal proportions by the Parties as the arbitration proceeds. Each Party will be responsible for its own costs, including attorneys' fees, in any negotiation, arbitration or court proceeding.
(e) Each Party shall continue performing its obligations under this Agreement while any Dispute is being resolved in accordance with this Section 10.9, unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.
10.10 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. This Agreement will be deemed to be made in the Province of Ontario and, subject to Section 10.9, the Parties hereby submit to the exclusive jurisdiction of the courts of the Province of Ontario for any legal action arising out of or related to this Agreement and agree not to commence any action, suit or proceeding in any jurisdiction other than the Province of Ontario. A Party may bring suit against the other Party in a forum other than Ontario, Canada, provided that (A) such suit is solely for an injunction to enforce this Agreement and is not for damages; (B) such suit is brought against the other Party in a jurisdiction or forum in which the other Party is doing business; and (C) the other Party is not a resident of Ontario, Canada and would not otherwise be directly subject to an injunction issued by a court in Ontario, Canada.
10.11 Counterparts; Delivery by E-mail. This Agreement may be executed in two or more counterparts each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Delivery of an executed copy of this Agreement by e-mail transmission will constitute valid and effective delivery of an original executed copy.
10.12 Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement will be deemed to create a partnership or joint venture or a relationship of principal and agent, employer-employee, master-servant, or franchisor-franchisee among or between the Parties. The relationship between the Parties is non-exclusive.
10.13 Purchase Orders. No terms and conditions in any purchase order or other order forms of Customer (the “Customer Order”), other than the identification of the Services being purchased, the applicable pricing and the address for invoicing shall be binding on Mango, and all such terms are hereby expressly rejected. If explicit acceptance is required by Mango, Customer understands and agrees that Mango is merely accepting the terms and conditions in the Customer Order to facilitate Customer’s procurement process and Mango hereby objects to and rejects any conflicting, inconsistent, additional or amending terms and conditions in the Customer Order. Customer acknowledges and agrees that this Agreement has been negotiated and/or accepted by Customer with the express intention that the terms and conditions in this Agreement shall govern the provision of the Services.
