Usage Agreement

The Text of This Agreement was Last Updated on July 31, 2014.

This Software Usage Agreement (the “Agreement”) is a legal agreement between you and Sesame HQ Inc. d/b/a Sesame (“Sesame”) respecting your use of Sesame services as described herein and on Sesame’s website. BY CLICKING ON THE APPROPRIATE ACCEPTANCE BUTTON BELOW, OR BY OTHERWISE USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. If you are accepting this Agreement on behalf of a company, employer or other entity, so that such company, employer or other entity and/or its employees and you are to be permitted to use the services and software hereunder, you are representing that you have the authority to bind such company, employer or other entity to this Agreement, and will also comply with this Agreement as an individual. If you have any questions or concerns about the terms of this agreement, please contact us at legal@sesamehq.com.

1 DEFINITIONS

1.1 “Agreement” means this Software Usage Agreement between You and Sesame.

1.2 “Application” means the Sesame web-based software application which provides teachers and students with the ability to digitally capture and upload the students’ work into individual students’ accounts on the software application, by means of photographs taken from mobile devices and/or other image capturing technology coupled with user account information and/or individually assigned QR codes, as more particularly described in Schedule A.

1.3 “Content” means any content uploaded by Users through and to the Application.

1.4 “Documentation” means the user manuals, handbooks and other written or electronic materials furnished by Sesame in conjunction with the Software.

1.5 “Intellectual Property” means any material conceived or produced in the furtherance of Sesame’s interest and business or in which Sesame otherwise has a proprietary interest, and shall include, but is not limited to the following: the Application, Software, documents, codes, methods, designs, programs, techniques, processes, products and reports, whether conceived or produced by Sesame, employees or contractors of Sesame, or any third party on Sesame’s behalf.

1.6 “Intellectual Property Rights” means all copyrights, patents, trademarks, industrial designs, trade secrets and any other proprietary rights associated with Intellectual Property.

1.7 “Party” means each of Sesame and You, and “Parties” means Sesame and You collectively.

1.8 “Services” has the meaning set forth in Section 2 below.

1.9 “Software” means the Sesame software application, hosted on Sesame’s website, which provides You with the ability to track your Users’ usage of the Application and the Content input by Users through the Application, and to set parameters for Content sharing and Application use, as described on Sesame’s website through which You registered for the Software, Application and Services.

1.10 “User” means a user of the Application who is a teacher or student subject to Your jurisdiction, who has obtained the Application through You, and who is using the Application solely for the purpose of creating a record of students’ work at school, and not for the purposes of further distributing the Application, including without limitation by resale or sublicensing.

1.11 “Viewing Application” means Sesame’s web-based application through which permitted users, such as parents, are able to view the Content.

1.12 “You” means the legal entity agreeing to this Agreement, being either an individual teacher registering with Sesame to use the Application with respect to the students in their class or classes, or a school registering with Sesame to use the Application for multiple teachers and multiple classes.

2 SCOPE OF SERVICES AND GRANT OF LICENSE

2.1 Subject to the terms and conditions of this Agreement, Sesame will provide You with the ability, through the Software, to track your Users’ usage of the Application; monitor, review and edit Content that is input by Users through the Application; provide permission for specified users to view Content through the Viewing Application; set parameters for Content sharing and Application use; and obtain the benefit of any other features purchased through Sesame’s website (if any) (the “Services”).

2.2 In order to use the Services, You must:
(a) provide up-to-date, complete and accurate information respecting your Users and other employees or contractors authorized to access the Services;
(b) provide up-to-date, complete and accurate User information, including without limitation sufficient User information to permit Sesame to assign a unique QR code for each participating student, and access information for each participating teacher; and
(c) be at all times in compliance with the terms and conditions of this Agreement and applicable law.
You specifically agrees that Sesame may rely on the accuracy of the information provided by You to Sesame, and that Sesame will have no liability whatsoever, whether to You or to any third party, for any claims or damages resulting from inaccurate information provided to Sesame.

2.3 Sesame will provide You with certain information to allow You to use the Application and Services, such as one or more user IDs and passwords and/or the ability to create user IDs and/or passwords, as well as unique QR codes for students (the “Access Information”). The Access Information is provided on the understanding that it is personal to You; You will not permit anyone other than You or your authorized representatives to obtain access to the Services using the Access Information. Sesame is not responsible or liable in any way for any use of the Services (authorized or unauthorized) by any party accessing the Services using Your Access Information, except where such Access Information was obtained through a breach by Sesame, and You accept all responsibility for such use of the Services and any consequences resulting from such use of the Services.

2.4 Sesame hereby grants You a personal, non-exclusive, revocable, non-transferable license to use the Application and Software, and to permit Users to use the Application, solely as accessed through Sesame’s website and solely for the purposes of using the Services.

2.5 You shall not:
(a) copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate, decrypt, reverse compile or convert into human readable form the Application, Software or any parts thereof;
(b) remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Application or Software (including without limitation any copyright notice or other notice of intellectual property ownership);
(c) use the Application or Software in any way inconsistent with the use parameters for the Services;
(d) attempt to hack the Application or Software or any communication initiated by the Application or Software or to defeat or overcome any encryption and/or other technical protection methods implemented by Sesame with respect to the Application and/or Software and/or data and/or content transmitted, processed or stored by Sesame or other users of the Services;
(e) collect any information or communication about the users (including Users) of the Application, Services or Software by monitoring, interdicting or intercepting any process of or communication initiated by the Software or Services or by developing or using any software or any other process or method that engages or assists in engaging in any of the foregoing;
(f) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access to the Services or any computer system or that are designed to monitor, distort, delete, damage or disassemble the Application or Software or its ability to communicate and perform the Services; or
(g) authorize, permit or otherwise acquiesce in any other party engaging in any of the activities set forth in (a) – (f) above, or attempting to do so.
For the purposes of this provision “copy or reproduce” shall not include copying of statements and instructions of the Software during program execution when used in accordance with and for the purposes described in the Documentation, in accordance with industry standard business practices.

3 YOUR USE OF THE SERVICES

3.1 You agree that:
(a) You will not permit anyone other than an authorized representative of Your institution to obtain access to the Application, Software or Services through Your account with Sesame, or otherwise using Your Access Information, and will only use the Services in accordance with this Agreement and applicable law;
(b) You will ensure that any information that is provided to Sesame pursuant to this Agreement is true, accurate, current and complete;
(c) You will be solely responsible for all activities with respect to the Application, Software and Services undertaken by You and your Users;
(d) You will not use the Application, Software or Services for any commercial purposes or for the benefit of any third party;
(e) You represents and warrant that You have the right and the authority to enter into this Agreement and to use the Services, and have obtained all authorizations necessary from all third parties (including Users) for Your use of any third party information obtained through the Application or Services;
(f) You will ensure that Your use of the Application, Software or Services does not interfere with, degrade, or adversely affect any software, system, network or data used by any person including Sesame and other users of the Services (including by ensuring that You do not upload any viruses or other harmful code in using the Services or by placing an undue burden upon the CPUs, servers or other resources used to provide the Services);
(g) You will not in any way use the Application, Software or Services to commit or attempt to commit any crime or other illegal or tortious acts, including any fraudulent activities or any activities that violate any third party’s privacy rights;
(h) You will not interfere with or in any manner compromise any of Sesame's security measures;
(i) You will not alter, modify, delete, or otherwise interfere with or in any manner compromise any content, data and/or features accessible through the Application, Services or Software;
(j) You will cooperate with Sesame and provide information requested by Sesame to assist Sesame and/or relevant authorities in investigating or determining whether there has been a breach of this Agreement or applicable law.
Without limiting the foregoing, You agree not to violate any applicable laws, the rights of others, or the operational and security mechanisms of the Services. Sesame reserves the right to revoke service for any abusive conduct or fraudulent use of the Application, Software or Services and to cease the Services, temporarily or permanently, in the event that Your use of the Application, Software or Services or the provision of the Services constitutes, in Sesame’s reasonable judgment, a threat to Sesame’s or any third party’s computer systems, networks, files, materials or other data.

3.2 The Services will be subject to the usage limitation policies as provided to You by Sesame from time to time, including in electronic form by posting on Sesame’s website. Such policies may include limitations on data storage space and equipment and software requirements. You are solely responsible for compliance with such policies.

3.3 You are solely responsible for the selection, implementation, installation, maintenance and performance of any and all equipment, software and services used for using the Application, Software or Services (except for Sesame’s computer systems and networks), including without limitation Your internal network infrastructure and any mobile devices.

3.4 You acknowledge and agree that Sesame cannot guarantee data integrity, and that it is solely Your responsibility to back up any of Your and Your Users’ information and data that You use in conjunction with the Services, including all Content.

3.5 You agree to promptly and accurately report to Sesame any actual or apparent errors, problems, nonconformities or other difficulties in Services, along with any other information reasonably requested by Sesame to aid in resolving such errors, problems, nonconformities or other difficulties, and hereby consent to the collection, processing, transmission and disclosure of such information by Sesame for the purposes of Sesame’s internal use to improve the Services or other Sesame products or services.

3.6 You acknowledge and agree that an integral part of the Services entails the collection of Content from Your students, and the processing of such Content by Sesame through the Application and Software. Nothing herein transfers any ownership of such Content to Sesame; however, You grants Sesame a license to use such information and data solely to provide You with the Services. You are solely responsible for obtaining all relevant permissions for Sesame to collect such information and data from your Users for the purposes of providing the Services to You and Users. Sesame will have no liability whatsoever respecting any claim relating to the Content by You, Users, or any third party whose information and data are in the Content, whether related to privacy or otherwise, and You agree to indemnify, defend and hold Sesame harmless against any such claims.

3.7 You agree that any suggestions, bug reports or other communications respecting the functionality of the Application, Software or Services that You transmit to Sesame by any means (each, a "Submission"), is considered non-confidential and may be disseminated or used by Sesame or any third party without compensation or liability to You for any purpose whatsoever. For greater certainty, nothing shall be deemed to include any Content as a Submission, except as expressly specified as a Submission by You. By providing a Submission to Sesame, whether for inclusion on the Services or otherwise, You represent and warrant that You have all necessary permissions to grant the licenses below to Sesame. You hereby grant Sesame, its affiliates and successors a perpetual, worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use, copy, distribute, transmit, modify, develop, prepare derivative works of any Submission on, through or in connection with the Service, including without limitation, for promoting, improving and developing the Services. This provision does not apply to Content or personal information that is subject to Sesame’s Privacy Policy.

4 LICENSE FEE AND PAYMENT

4.1 You shall pay fees to Sesame for the Application, Software and Services in accordance with Sesame’s then-current fee schedule as set forth on Sesame’s website through which you registered for the Services and the Application. Payment shall be made in accordance with Sesame’s payment policy, available on Sesame’s website.

4.2 If You fail to pay any amount due under this Agreement within thirty (30) days of such payment becoming due and payable, Sesame may terminate this Agreement in accordance with Section 12.2(a).

4.3 You are responsible for, and shall pay all taxes relating to this Agreement, excluding any taxes based on the net income of Sesame. Unless otherwise indicated, all amounts payable by You under this Agreement are exclusive of any tax, duty, levy, or similar government charge that may be assessed by any jurisdiction. If You are required to withhold any taxes from payments owed under this Agreement, the amount of payment due shall automatically be increased to offset such tax, so that the amount actually remitted to Sesame shall equal the amount invoiced or otherwise due.

5 UPDATES, UPGRADES, TRAINING AND SUPPORT

5.1 During the term of this Agreement, Sesame will provide any standard updates and upgrades to the Application and Software to which You have access, at no extra cost. Updates and upgrades will be released by Sesame at its sole discretion; Sesame is not required to release updates or upgrades on a fixed schedule or at all. Nothing herein shall imply any obligation for Sesame to make or develop any custom updates or upgrades for You.

5.2 In the event that You purchase support services from Sesame through the Sesame website, conditional upon Your payment of all applicable fees, Sesame will provide the support described on the website, which may include the following support services:
(a) Advice provided by e-mail, within forty-eight (48) hours, on the use and maintenance of the Software where such Software is not operating in accordance with its specifications;
(b) Instruction provided by e-mail on the use and maintenance of the Software where such instructions are not included in the documentation accompanying the Software;
(c) Guidance on software failure diagnoses and suggestions for Software error correction provided by e-mail;
(d) Commercially reasonable efforts to correct any defects in the Software which prevent the Software from operating in accordance with its specifications;
(e) Access to a knowledge centre with commonly asked questions as well as a forum to post and answer questions.

5.3 The following services are specifically excluded from the support services; however, this is not an exclusive list of excluded services:
(a) installation of the Software;
(b) on-site support related to the Software; or
(c) corrections of defects found by Sesame to be:
(i) in other than a current, unaltered release of the Software provided free or charge to You;
(ii) caused by Your negligence or by modifications made to the Software by You;
(iii) arise from use or interoperability of the Software in combination with hardware or software not specifically approved by Sesame;
(iv) caused by improper or unauthorized use of the Software;
(v) due to external causes such as, but not limited to, power failure or electrical power surges; or
(vi) defects which do not prevent the Software from operating in accordance with its specifications.

5.4 Sesame shall not be responsible for the combined use or integration of the Application or Software with any hardware or software whatsoever, whether Yours, or other third party’s unless otherwise agreed upon in writing. In no event shall Sesame be obligated to customize or otherwise modify the Application or Software to meet Your requirements. In the event that You wish Sesame to customize the Application or Software in any way, such customization shall be subject to the successful negotiation and execution of a separate written development agreement between Sesame and You, and shall be in accordance with the terms and conditions of such agreement.

5.5 Sesame shall not be responsible for any unavailability, suspension or termination of the Software or Application, or performance issues (i) that result from a suspension due to scheduled downtime or emergency maintenance; (ii) caused by any event occurring beyond Sesame’s reasonable control (including any force majeure events) or Internet access or related problems beyond the demarcation point of Sesame; (iii) that are caused by any actions or inactions of You or any third party; (iv) that result from (independently or in combination) Your equipment, software or other technology or any third party equipment, software or other technology (other than third party equipment within Sesame’s direct control); or (v) arising from Sesame’s suspension or termination of Your right to use the Software in accordance with this Agreement.

6 PUBLICITY

6.1 Neither Party will make any announcement, news release, public statement, publication or presentation relating to the terms or existence of this Agreement, or about the other Party, without the other Party’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Sesame reserves the right to make announcements, press releases, publications, presentations and other public statements respecting the existence of its relationship with You, without Your prior written approval, provided that Sesame does not disclose Your confidential information in the course of such publicity in contravention of its confidentiality obligations hereunder.

7 CONFIDENTIAL INFORMATION AND DATA PROTECTION

7.1 Each Party acknowledges that, during the course of this Agreement, each Party may be exposed to confidential information of the other Party. Each Party agrees that all such Confidential Information shall be subject to the terms and conditions of any confidentiality agreement entered into between the Parties. Without limiting the foregoing, each Party agrees not to disclose any confidential information of the other Party to any third party without prior written permission of the other Party, and to protect all confidential information disclosed by the other Party using no less than reasonable care, until and unless such information becomes public through no fault of the Party receiving the confidential information. All information classified as personal information shall be handled by Sesame in accordance with its Privacy Policy, found on Sesame’s website.

7.2 Sesame will treat all Content as confidential information, in accordance with Section 7.1 above. Sesame will implement commercially reasonable measures to store and safeguard such information.

7.3 You represents and warrants that You: (a) have obtained all relevant and informed consents to the inclusion of any personal information of Your students, from such students’ legal guardian where applicable, that may be provided to Sesame by You or Users in connection with the Application or Services, and (b) have the full right to include such personal information. You hereby agrees to defend, indemnify and hold Sesame harmless from and against any claims relating to such provision and inclusion of personal information in the Services. Without prejudice to the foregoing, Sesame reserves the right to delete any data containing such personal information where a student or their legal guardian requests such deletion.

7.4 You acknowledge that, due to the nature of the Application and Services, information or data uploaded to the Application and Services may be hosted on servers residing in jurisdictions other than Canada, over which Sesame has no direct control. By using the Services, You acknowledge that the Content may become, during the period that it is hosted on such servers, subject to the laws of the jurisdiction in which those servers reside and/or to the terms of agreements respecting the hosting of data on such servers. Although Sesame has made reasonable efforts to verify that its agreements with such server providers are reasonably protective of Your and Users’ data, You acknowledges that Sesame has no liability for any acts or omissions of third parties in relation to such servers and the data stored on them. You therefore hereby release Sesame from all liability for any governmental or third party action taken in such jurisdictions with respect to such data (including the Content) and/or the servers on which such data resides, and You acknowledge that you retain sole responsibility to back up and retain copies of such Content and other information.

8 INTELLECTUAL PROPERTY

8.1 You acknowledge that Sesame is the exclusive owner of all Intellectual Property and Intellectual Property Rights in the Application, Software and Viewing Application and retains all right, title and interest therein. You further acknowledge that the Application, Software and Viewing Application is protected by Canadian, U.S. and international copyright laws and that other intellectual property laws (including patent laws) and treaties may protect the Application, Software, Viewing Application and/or Services. It is therefore Your responsibility to fully comply with such laws in using and handling the Services, Application, Software and Viewing Application. Nothing herein shall be construed as constituting a sale of the Application, Software or Viewing Application or any portion thereof to You.

8.2 Except as expressly set forth in this Agreement, nothing herein shall be deemed to transfer ownership, right, title or interest in or to any Intellectual Property or any Intellectual Property Rights from Sesame to You. For greater certainty, You shall have only those rights to the Application, Software and Services as expressly granted by this Agreement. Any rights not expressly granted under this Agreement are reserved.

9 WARRANTIES

9.1 THE SERVICES, APPLICATION AND SOFTWARE ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. SESAME ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES WHATSOEVER IN THE INFORMATION PROVIDED THROUGH THE SERVICES, APPLICATION OR SOFTWARE. UNDER NO CIRCUMSTANCES WILL SESAME BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH USE OF THE SERVICES, APPLICATION OR THE SOFTWARE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ANY INFORMATION PROVIDED, AND USE OF THE SERVICES, APPLICATION AND SOFTWARE IS SOLELY AT YOUR OWN RISK. Sesame has no special relationship with or fiduciary duty to You, and You acknowledge that Sesame has no control over, and no duty to take any action regarding any acts or omissions taken by You, Users or any other user of the Services, including without limitation, how You or any other user may interpret or use Content or other materials accessed through the Services, or what actions You may take as a result of having been exposed to information obtained through the Services.

9.2 Some jurisdictions do not allow limitations or exclusions of certain types of damages and/or of implied conditions or warranties. The limitations, exclusions, and disclaimers set forth in this Agreement shall not apply only if and to the extent that the laws of a competent jurisdiction requires liabilities beyond and despite these limitations, exclusions, and disclaimers.

10 INDEMNITY

10.1 You agree to indemnify, defend and hold harmless Sesame, its parents, subsidiaries, affiliates, officers and employees, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of: (a) Your use or misuse of the Application, Services and/or Software, (b) any breach of this Agreement by you, (c) Your negligence or wilful misconduct, or (d) Your violation of any third-party rights or any applicable laws. Sesame reserves the right, at Your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by You, in which event You will cooperate with Sesame, at Your expense, in asserting any available defences.

11 LIMITATION OF LIABILITY

11.1 The only type of damages that can be recovered against Sesame arising from or related to this Agreement including without limitation in relation to the provision of the Application, Software or Services, shall be Your direct damages, if any, to the extent arising from the gross negligence or wilful misconduct of Sesame. In no event shall the aggregate liability of Sesame exceed the amount paid by You for the portion of the Application, Software or Services that gave rise to the claim. SESAME SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE APPLICATION, SOFTWARE OR SERVICES. Without limiting the foregoing, Your only right with respect to any problems or dissatisfaction with the Services, Software or Application is to cease use of the Services, Software and Application.

11.2 EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SESAME BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SERVICES, SOFTWARE OR APPLICATION, EVEN IF SESAME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.3 Some jurisdictions do not allow limitation or exclusions of certain types of damages and/or of implied conditions or warranties. The limitations, exclusions, and disclaimers set forth in this Agreement shall not apply only if and to the extent that the laws of a competent jurisdiction requires liabilities beyond and despite these limitations, exclusions, and disclaimers.

12 TERM AND TERMINATION

12.1 This Agreement shall continue indefinitely until and unless terminated in accordance with the terms herein.

12.2 Each Party shall be entitled to terminate this Agreement for convenience upon thirty (30) days prior written notice to the other Party.

12.3 This Agreement may be terminated immediately upon notice for cause if:
(a) either Party commits a material breach of this Agreement, or consistently fails to properly perform and observe its obligations under this Agreement, and fails to rectify the situation within thirty (30) calendar days of the non-breaching party delivering notice of the breach or consistent failure to perform; or
(b) either Party becomes insolvent, or a receiver or receiver-manager is appointed for any part of the property of such party, or such party makes an assignment, proposal or arrangement for the benefit of its creditors or such party files an assignment in bankruptcy, or any proceedings under any bankruptcy or insolvency laws are commenced against such Party.
12.4 In addition to any other right and remedy contained herein, Sesame reserves the right, in its sole and complete discretion, to revoke and/or suspend Your access to the Services, and license to the Application and Software, at any time if: (a) You breach this Agreement or the policies and/or agreements it incorporates by reference; (b) Sesame is unable to verify or authenticate any information You provide; (c) Sesame believes that the Your actions may cause financial loss or legal liability for Users, other users of the Services and Application, other third parties, or Sesame; or (d) Sesame reasonably determines that Content is objectionable. Without limiting other remedies, Sesame may limit Your access to the Services, warn Users and other affected third parties of Your actions and/or issue a warning to You.

12.5 All fees paid by You are non-refundable. Termination of this Agreement shall not affect Your payment obligation for any fees for Services accruing prior to the date of termination.

12.6 Sesame reserves the right to investigate suspected violations of this Agreement. You hereby authorize Sesame to cooperate with: (a) law enforcement authorities in the investigation of suspected criminal violations and (b) authorized persons carrying out civil legal processes in order to enforce the terms and conditions of this Agreement.

12.7 The above-described actions are not Sesame’s exclusive remedies and Sesame may take any other legal, equitable or technical action it deems appropriate in the circumstances. Sesame will not be liable for any damage caused by the termination of this Agreement

12.8 Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.

13 THIRD PARTY APPLICATION STORES

13.1 If You have obtained the Application or Software through a third party application store, such as Apple iTunes or App Store (the “Third Party App Store”), You are subject to all terms and conditions imposed by such third parties in relation to Your download of the Application or Software and/or use of the Services, as applicable. Such Third Party App Store may impose additional restrictions, or may have additional rights, in relation to Your use of the Application or Services, such as removal of the Application from Your mobile device; it is solely Your responsibility to ensure that You are aware of the terms and conditions imposed by the Third Party App Store from which You downloaded the Software, and to comply with such terms and conditions. To the limited extent that this Agreement is less restrictive than the usage rules or terms and conditions for software downloaded from a Third Party App Store, or is in direct conflict with, the Third Party App Store terms of service or like agreement as they relate to your obligations to the Third Party App Store and Sesame, the usage rules of the Third Party App Store shall apply.

13.2 Although the Application and Software may be made available to You through Third Party App Stores, You acknowledge that this Agreement is concluded solely between You and Sesame, and not with the Third Party App Store, and the Third Party App Store shall have no responsibility whatsoever respecting the Services, Software, Application and the content thereof (including, without limitation, in relation to the sale, distribution or use thereof, the performance or non-performance thereof, the intellectual property rights therein and/or infringement thereof, or the support and/or maintenance thereof, or in relation to addressing any claims or liability in relation to the foregoing). Nothing herein shall obligate the Third Party App Store to offer You any warranty respecting the Application, Software or Services, and to the extent that any warranty is applicable, the Third Party App Store’s sole obligation will be to refund You the purchase price of the Application upon your notification of a failure covered by warranty to the Third Party App Store.

13.3 Each Third Party App Store from whom You have downloaded the Application or Software is a third party beneficiary of this Agreement, and, upon Your acceptance of the terms and conditions of this Agreement, such Third Party App Store will have the right (and You will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary thereof.

14 GENERAL

14.1 This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the Parties. There are no provisions, representations, undertakings, agreements, or collateral agreements between the Parties other than as set out in this Agreement.

14.2 This Agreement is governed by the laws of the Province of Ontario, Canada, without regard to conflict of laws provisions, and You agree to submit to the exclusive jurisdiction of the courts located in the Province of Ontario, Canada. The Parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement or to any contracts relating to goods or services obtained through this site.

14.3 You acknowledge and agree that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Sesame to show Your acceptance of this Agreement and/or intent to use the Services), You are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

14.4 If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in full force and effect.

14.5 It is the express will of the Parties that this Agreement and all related documents have been drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.

14.6 If You are residing in a jurisdiction which restricts the use of Internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement. Furthermore, if You are residing in a jurisdiction which prohibits Your use of the Application, Software or Services, You may not enter into this Agreement. By entering into this Agreement You explicitly state that You have verified in Your own jurisdiction that Your use of the Application, Software and Services is allowed. You further represent and warrant that (i) You are not located in a country that is subject to a Canadian or U.S. Government embargo, or that has been designated by the Canadian or U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any Canadian or U.S. Government list of prohibited or restricted parties.

14.7 You acknowledge and agree that the Application, Software and Services have been developed at significant cost and has significant commercial value to Sesame, and that inappropriate use of the Services, Software or Application could cause Sesame irreparable harm. You therefore agree that Sesame will have the right to seek, in addition to any of its other rights and remedies under law and equity, injunctive relief for any violation of this Agreement without posting bond or by posting bond at the lowest amount required by law.

15 CONTACT

15.1 If you have any questions regarding this Agreement, or if you have any questions, complaints, claims or other legal concerns relating to Sesame or its business, please contact Sesame at legal@sesamehq.com.