Subscriber Agreement and Terms of Use

UPDATED ON April 22, 2021.

PLEASE SCROLL DOWN AND READ THE SUBSCRIBER AGREEMENT AND TERMS OF USE BELOW.

This Subscriber Agreement and Terms of Use (this “Agreement”) governs your use of all digital products and services from Mercer-MacKay Solutions Inc. (“Mercer-MacKay”), and in some cases described below, beta materials, training materials and other publications (each a “Service”), unless other terms and conditions expressly govern. The Mercer-Mackay online marketing portal for daXai is an example of such digital products and services. These products and services are provided either directly by Mercer-MacKay Solutions Inc. and its partners (“we”, “us”, “our”) or through various third-party platforms and devices (e.g., mobile and tablet).

Certain materials within daXai are in beta testing and labelled as such. You might experience crashes, security vulnerabilities, data loss or other issues and are cautioned to backup all data and take any steps to avoid any losses.

Beta materials are being made available to you from time to time at no charge for the purpose of providing us with feedback on the quality and usability of the materials and our Services.

You agree that participation in the beta testing program is voluntary and does not create a legal partnership, agency, or employment relationship between you and us. Moreover, your participation in the beta testing program does not obligate you to subscribe to any of our Services. Your participation will however give you an opportunity to influence the development of our Services to meet your needs.

If you agree to be bound by the terms of this Agreement, you should check the box indicating your agreement to the terms of this Agreement on the registration page for the Service. If you do not agree to be bound by the terms of this Agreement, you should not check the box but you will not be able to proceed with the registration process for the respective Service and become a subscriber. To the extent you have access to, or are using, a Service without having completed our registration process, you are hereby notified that your continued use of a Service is subject to many of the terms and conditions of this Agreement as explained in Section 7 below.

1. Changes to Subscriber Agreement.
We may change the terms of this Agreement at any time by notifying you of the change in writing or electronically (including without limitation, by email or by posting a notice on the Service that the terms have been “updated” or similar words). The changes also will appear in this document, which you can access at any time by going to the Subscriber Agreement and Terms of Use link at the footer of those Services which are made available through our website. By using a Service after changes are made to this Agreement you signify that you agree to be bound by such changes.

2. Privacy.
Registration data and other information about you are subject to our Privacy Policy. Essentially, we will only use your personal information for the purpose of providing the Services, to communicate with you in connection with the Services, and otherwise in accordance with this Agreement and our Privacy Policy. Your information may be stored and processed in Canada and the United States or any other country where we do business, and by using a Service online, you consent to the transfer of information outside of your country.

3. Accessing a Service.
If your access to a Service has been recommended or provided by or through a third party (for example, your employer or an education institution where you are a student) (each, a “Third Party”), the Third Party may have provided us with information about you to enable us to provide you with access to the Service and distinguish you from other subscribers (such as your email address or name).

If you access a Service using a password, you are solely responsible for maintaining the confidentiality of that password. If you provide someone else with access to your password to a Service, they will have the ability to view information about your account and make changes through the website for the Service. Similarly, if you tell someone the answer to your security question for a Service, they will be able to request information about your account and make changes. If you believe someone has accessed a Service using your user name and password without your authorization, please immediately notify us by telephone and email. You are responsible for any fees or charges incurred to access a Service through an Internet access provider or other Third Party service.

You agree to notify us promptly if you change your billing and delivery addresses and email address so we can continue to contact you and send any notices required hereunder. If you fail to notify us promptly of a change, then any notice we send to your old address shall be deemed sufficient notice.

4. Fees and Payments.
You must be 18 years of age or older to purchase a subscription to the Services or any other content, product, or service offered by us through the Services. If you are less than 18 years of age and want to make any such purchase, please ask your parent or guardian to complete the purchase on your behalf.

You agree to pay the subscription fees and any other charges incurred in connection with your account for a Service (including any applicable taxes) at the rates in effect when the charges were incurred. If your subscription includes access to areas containing premium content or services, your access to such areas may be subject to additional fees, terms and conditions, which will be separately disclosed in such areas.

Unless you have paid by check, we will bill all charges automatically to your credit card. Subscription fees will be billed monthly or annually in advance (depending on the option you choose when you subscribe) at the beginning of your subscription or any renewal. If you want to use a different credit card or you need to update your credit card details, please log in to your Customer Account to make changes.

Generally, all fees and charges are non-refundable. We reserve the right to issue refunds or credits at our sole discretion. If we do issue a refund or credit, we are under no obligation to issue the same or similar refund in the future. We may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance and an opportunity to cancel.

5. Term; Cancellation and Renewal.
This Agreement shall remain in full force and effect while you use the Services. Unless you have paid by check, your subscription will renew automatically for the term you have chosen (monthly or annually) unless either party gives notice of termination to the other at least thirty (30) days prior to the end of the initial term or any renewal of it.

For trial subscriptions (when available), you must cancel your trial subscription before it expires in order to avoid billing of the annual subscription. If your paid subscription is terminated or expires, we will continue to make available to you any free Services provided however, this may not be the case if this Agreement is terminated for cause.

Either party may terminate this Agreement if the other breaches any term and does not (a) remedy the breach, or (b) financially compensate the other party for the breach, within 30 days after receiving notice of the breach. Either party may terminate this Agreement if any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against the other party or its property, and the same is not dismissed within 30 days, or (ii) if the other party makes any assignment for the benefit of its creditors, becomes insolvent, commits any act of bankruptcy, ceases to do business as a going concern, or seeks any arrangement or compromise with its creditors under any statute or otherwise.

If we rightfully terminate this Agreement for cause, you will be liable for all amounts then owing for the remaining days or months of the initial term of your subscription.

6. Availability of Service through other Platforms; Third Party Payment Services.
6.1 If you access a Service through a mobile application or other type of third party platform, the applicable End User License Agreement for the mobile service through which you downloaded the mobile application may apply in addition to the terms of this Agreement and you agree that you are subject to such application or platform’s terms in addition to this Agreement.

6.2 If your access to a Service is provided by, or through a Third Party (as defined in Section 3 above),or if you purchased your subscription to the Service through a retailer rather than from us directly, some or all of the “Fees and Payments” and “Cancellation and Renewal” terms may not apply to you. Please contact the Third Party, retailer or our Customer Service department for details. If you access a Service without paying or registering (e.g., as part of a free trial), you are hereby notified that all of the terms and conditions of this Subscriber Agreement, except the sections labeled “Fees and Payments” apply to your use and access of the Service.

6.3 From time to time, we may use a third party not affiliated with us to process payments for a Service (a “Third Party Processor”). Examples are Microsoft Pay and Apple Pay. You agree that this Third Party Processor is solely responsible for controlling, handling, processing, or fulfilling purchases processed through its systems. When using such Third Party Processor you may be subject to additional terms of use/service and privacy policy(ies) of the Third Party Processor.

7. Limitations on Use.
7.1 Only one individual may access a Service at the same time using the same user name or password, unless we agree otherwise.

7.2 The graphics, images, video, artwork, metadata and other data, design, organization, compilation, look and feel, advertising and all other protectable intellectual property, including but not limited to any copyrights, trademarks, service marks, trade names, trade dress, patent rights, or database rights (the “Intellectual Property”) available through the Services are our property or the property of our licensors and are protected by copyright and other intellectual property laws. Unless you have our written consent, you may not use, sell, publish, distribute, retransmit or otherwise provide access to the Intellectual Property received through the Services to anyone, including without limitation, your fellow employees, with the following exceptions:

7.3 You may occasionally distribute a copy of an article, or a portion of an article, from a Service in non-electronic form to a few individuals without charge, provided you include all copyright and other proprietary rights notices in the same form in which the notices appear in the Service, original source attribution, and the phrase “Used with permission from Mercer-MacKay Solutions Inc.” Please contact us if you need to distribute an article from a Service to a larger number of individuals, on a regular basis or in any other manner not expressly permitted by this Agreement.

7.4 You may occasionally use our “Email It”, “Pass It-On” or a similarly branded service (if specified in an article) to email or hyperlink to an article from a Service to a few individuals, without charge. You are not permitted to use this service for the purpose of regularly providing other users with access to content from a Service.

7.5 While you may download, store and create an archive of articles from the Service for your personal use, you may not otherwise provide access to such an archive to any third party. The foregoing does not apply to any sharing functionality we provide through the Service that expressly allows you to share articles or links to articles with others.

8.0 Additional Restrictions on Use of the Content.
8.1 You agree not to rearrange or modify the Intellectual Property available through a Service. You agree not to display, post, frame, or scrape the Intellectual Property for use on another web site, app, blog, product or service, except as otherwise expressly permitted by this Agreement. You agree not to create any derivative work based on or containing the Intellectual Property. The framing or scraping of or in-line linking to the Services or any Intellectual Property contained thereon and/or the use of automated means to access, copy, index, process and/or store any Intellectual Property made available on or through the Services other than as expressly authorized by us is prohibited.

8.2 You further agree to abide by exclusionary protocols that may be used in connection with the Services. You may not access parts of the Services to which you are not authorized, or attempt to circumvent any restrictions imposed on your use or access of the Services.

8.3 You may not use the Intellectual Property in any commercial product or service, without our express written consent.

8.4 You may not create apps, extensions, or other products and services that use our Intellectual Property without our permission. You may not aggregate or otherwise use our Intellectual Property in a manner that could reasonably serve as a substitute for a subscription to a Service.

8.5 Any unauthorized or prohibited use of any Intellectual Property may subject you to civil liability, criminal prosecution, or both, under applicable federal, provincial, state, local laws, or applicable foreign laws, rules, regulations and treaties. We require users to respect our copyrights, trademarks, and other intellectual property rights and we will enforce these rights.

8.6 You agree not to use the Services for any unlawful purpose. We reserve the right to terminate or restrict your access to a Service if, in our sole opinion, your use of the Service may violate any laws or regulations, infringe upon another person’s rights or violate the terms of this Agreement.

8.7 To the extent that the Services may be used by you in conjunction with third party materials, the Services are provided to you only for use with materials that you are authorized or legally permitted to reproduce. If you are uncertain about your right to copy any material, you should contact your legal advisor.

9. Third Party Web Sites, Services and Software.
Your use of any third-party websites, content, data, information, applications, goods, services or materials (collectively, “Third Party Services”) does not constitute an endorsement by, nor does it incur any obligation, responsibility or liability on our part. We do not verify, endorse, or have any responsibility for Third Party Services and any third -party business practices (including, without limitation, their privacy policies), whether the Services or our logo and/or sponsorship identification is on the Third-Party Services as part of a co-branding or promotional arrangement or otherwise. Accordingly, we encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each Third-Party Service you use.

10. DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON LIABILITY.
If you are a client who is a consumer (someone who uses the Services outside of your trade, business or profession), you may have legal rights in your country of residence which would prohibit the following limitations from applying to you, and where prohibited they will not apply to you.

10.1 YOU AGREE THAT YOUR ACCESS TO, AND USE OF, THE SERVICES AND THE CONTENT, TOOLS, PRIZES AVAILABLE THROUGH THE SERVICES IS ON AN “AS-IS”, “AS AVAILABLE” BASIS AND WE SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIEDWARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

10.2 THE LIABILITY OF MERCER-MACKAY SOLUTIONS INC. AND ITS AFFILIATES AND ITS RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, ADVERTISERS, CONTENT PROVIDERS AND LICENSORS (“THE MERCER-MACKAY PARTIES”) WILL BE LIMITED TO DIRECT DAMAGES UP TO THE AMOUNT YOU PAID FOR THE SERVICES DURING THE ONE MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.

10.3 THE MERCER-MACKAY PARTIES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON AS A RESULT OF YOUR ACCESS OR USE OF THE SERVICES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST REVENUES, LOST PROFITS, FAILURE TO REALIZE ANTICIPATED SAVINGS OR REVENUE, LOST DATA OR LOSS OF GOODWILL (COLLECTIVELY, THE “EXCLUDED DAMAGES”). THIS EXCLUSION APPLIES TO ALL CLAIMS IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING THE CLAIM INCLUDING BUT NOT LIMITED TO (A) BREACH OF CONTRACT EVEN IF A FUNDAMENTAL BREACH, (B) TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, DELICT OR MISREPRESENTATION), OR (C) BREACH OF STATUTORY DUTY OR STRICT PRODUCT LIABILITY. THIS EXCLUSION APPLIES EVEN IF ANY OF THE MERCER-MACKAY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY.

10.4 IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION 10 TO BE UNENFORCEABLE, THEN THE MERCER-MACKAY PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.

11. Agreement to Arbitrate.
11.1 The parties acknowledge that any statutory or common law claims related to intellectual property may require forms of equitable relief that are best administered by courts; accordingly, the parties agree that except for statutory or common law claims related to intellectual property and disputes that qualify for small claims court, any controversy or claim arising out of or relating to this Agreement or any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved by arbitration in the City of Toronto, Ontario, Canada and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction in the aforesaid location. You agree that by entering into this Agreement, you and we are each waiving the right to trial by a judge or jury, except as otherwise stated above. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and, by entering into this Agreement, you are giving up the ability to participate in a class action. This agreement to arbitrate shall survive termination of this Agreement. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and, if the law allows, they can seek relief against us for you.

11.2 The arbitrator may award money or equitable relief in favor of only the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To reduce the time and expense of the arbitration, the arbitrator will not provide a statement of reasons for his or her award unless requested to do so by both parties. Unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

12. General.
This Agreement contains the final and entire agreement between us regarding the Services and supersedes all previous and contemporaneous oral or written agreements regarding the Services. We may discontinue or change the Services, or their availability to you, at any time. This Agreement is personal to you, which means that you may not assign your rights or obligations under this Agreement to anyone. No third party is a beneficiary of this Agreement. You agree that this Agreement, as well as any and all claims arising from this Agreement will be governed by and construed in accordance with the laws of the Province of Ontario, Canada, without regard to any conflict or choice of law principles. Our failure to enforce any provision of this Agreement or to respond to a breach by you or other parties of this Agreement shall not in any way waive our rights to subsequently enforce any term or condition of this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.