Terms of Service

Last updated: October 15, 2024

These Nishe Terms of Service (the “Terms of Service”) govern your access to and use of the Nishe Platform, including the website located at www.nisheretail.com, mynishe.com, nisheads.com and any other web properties operated by Nishe (the “Website”). These Terms of Service form a binding legal agreement between you (“you” or “Customer”) and Nishe Retail Technologies Inc. (“Nishe”, “us”, “we”, “our”). The term “Customer” refers to the organization that you represent in agreeing to this Agreement. If your account is being set up by someone who is not formally affiliated with an organization, Customer is the individual creating the account. The “Parties” refer to Nishe and Customer and “Party” refers to each of Nishe and Customer.

YOU REPRESENT AND WARRANT TO NISHE THAT YOU HAVE THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF YOU ARE USING THE NISHE PLATFORM ON BEHALF OF ANOTHER PERSON OR ENTITY, YOU HEREBY REPRESENT AND WARRANT TO NISHE THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THESE TERMS OF SERVICE.

BY USING THE NISHE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12(k). IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MUST IMMEDIATELY CEASE ANY FURTHER USE OF THE NISHE PLATFORM. 

These Terms of Service are agreed to on the earlier of your first use of any part of the Nishe Platform or explicit acceptance of these Terms of Service (whether through an Order Form (as defined below) or otherwise).

1. Nishe Platform

This section sets out Nishe’s responsibilities to provide access to the Nishe Platform and what you can and can’t do while using the Nishe Platform.

1. Subscription to the Nishe Platform. By accepting to use and/or subscribe to the Nishe Platform (which may be through an order form, a web form/interface or other written communication outlining the part of the Nishe Platform to which you’re subscribing/using and which incorporate these Terms of Service by reference, such form or written communication, collectively, the “Order Form”; all Order Forms, together with these Terms of Service, the “Agreement”; such use and/or subscription, the “Subscription”), Customer will be permitted to access and use the Nishe Platform, or part thereof, in accordance with the terms and conditions of these Terms of Service.

2. Third Party Products and Services. Nishe Platform uses and relies on products and services that are outside of Nishe’s control (e.g. Shopify) (such products and services, the “Third Party Services”; the provider of such Third Party Services, the “Third Party Provider”) and to ensure the continued provision of the Third Party Services, Customer must comply with all terms and conditions applicable to the Third Party Services. Further, Customer understands and agrees that Nishe shall not be held responsible for any faults, issues or otherwise arising from such Third Party Services and shall hold the Third Party Provider responsible for anything arising from such Third Party Services. 

3. Restrictions on Use. You will not, nor will you permit others to: (i) use the Nishe Platform to resell or permit timesharing or service bureau use of the Nishe Platform; (ii) use the Nishe Platform to create, collect, send, upload, transmit, store, post, publish, use, process, or otherwise communicate data, information, pictures, videos, audio or other materials or content that: (A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (B) that you do not have the lawful right to create, collect, send, upload, transmit, store, post, publish, use, process, or otherwise communicate; (C) is false, intentionally misleading, or impersonates any other person; (D) is bullying, harassing, abusive, threatening, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination, bigotry, hatred, or physical harm of any kind against any group or individual; (E) is harmful to minors in any way or targeted at minors; (F) that violates any applicable laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); (G) encourages any conduct that may violate any applicable laws or would give rise to civil or criminal liability; (iii) reverse engineer, de-compile or disassemble any component of the Nishe Platform; (iv) remove or obscure any proprietary notices or labels on the Nishe Platform; (v) access or use the Nishe Platform for the purpose of building a similar or competitive product or service; or (vi) perform any vulnerability, penetration or similar testing of the Nishe Platform.

4. Nishe may perform implementation, training, consultation or other services related to the Nishe Platform as set out in a separate Order Form or the same Order Form as the Subscription (the “Professional Services”). Nishe will provide such resources and utilize such employees and/or contractors as Nishe deems necessary to perform the Professional Services. Nishe will use commercially reasonable efforts to meet the delivery schedules set forth in the Order Form, and Customer agrees to cooperate in good faith to allow Nishe to achieve completion of such Professional Services in a timely manner, including by providing materials and assistance as reasonably requested by Nishe. If achievement of any particular milestone is dependent upon performance of tasks by Customer and/or by a third party outside of Nishe’s control, and the Customer and/or the third party is responsible for any delay, the date of the milestone shall be automatically adjusted to account for such delay.

2. User Accounts

This section sets out how Nishe Platform accounts are issued and maintained, and your responsibilities concerning your Nishe Platform account. 

1. Upon Customer’s request, Nishe will issue accounts to those Personnel who require access to the Nishe Platform (all such accounts tied to Customer, the “Customer User Accounts”; the users of such Customer User Accounts, the “Permitted Users”). All activities on the Customer User Accounts shall be deemed to be activities performed on behalf of the Customer.

2. Obligations relating to the Customer User Accounts:

   1. You will ensure that Permitted Users are aware of and adhere to the obligations and restrictions set out in these Terms of Service or any other terms applicable to the Nishe Platform. Any actions and inactions of the Permitted Users shall be the responsibilities of Customer.

   2. Permitted Users shall only use the Nishe Platform through the Customer User Accounts and shall not share their accounts with anyone else.

   3. Permitted Users must keep information about their accounts (e.g. ID and passwords) confidential. Permitted Users shall be responsible for all activities that occur under their account, and it is their responsibility to report any suspicious activities to You and if required, to Nishe. Nishe has the right, but not the obligation, to deactivate any Customer User Account identified in such notification. Nishe is not liable for any loss or damage arising from any activities on any Customer User Account, whether or not compromised, and whether or not Customer or the affected Permitted User communicated any suspicious activities in accordance with this section.

   4. Customer shall ensure that its Permitted Users do not submit, as Customer Data, any sensitive personal information such as government issued personal identification numbers, consumer financial account information, credit card information (except for the purpose of paying any Fees), personal health information, or information deemed "sensitive" under data protection laws of the EU, US or other applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs) (such sensitive data, the "Restricted Data"). For the purpose of clarity, examples of government issued personal identification numbers include drivers' license numbers, Social Insurance Number (Canada), and passport information.

3. Proprietary Rights

This section sets out each Party’s proprietary rights relating to Customer Data, Nishe Platform and Aggregated Data. 

1. Where the Nishe Platform requires Customer Data, by submitting, providing and/or making Customer Data available to the Nishe Platform, Customer (i) represents that it has the necessary rights to the Customer Data to be used with the Nishe Platform, and (ii) hereby grants to Nishe during the Term a limited, non-exclusive, worldwide, royalty-free and non-transferable right to use the Customer Data with the Nishe Platform.

2. Nishe shall retain all right, title and interest (including any Intellectual Property Rights) in the Nishe Platform. Except for the rights granted in these Terms of Service, Customer does not acquire any right, title and interest (including any Intellectual Property Rights) to the Nishe Platform.

3. Customer shall retain all right, title and interest (including any Intellectual Property Rights) in the Customer Data. Except for the rights granted in these Terms of Service, Nishe does not acquire any right, title and interest (including any Intellectual Property Rights) to the Customer Data.

4. Nishe may collect, generate and aggregate data derived from the operation of the Nishe Platform (the “Aggregated Data”) and may use the Aggregated Data for purposes such as operating, developing, monitoring and improving the Nishe Platform and for other Nishe offerings. Such Aggregated Data will be de-identified to exclude any information that identifies You, Permitted Users or an individual. Nishe shall own all right, title and interest (including any Intellectual Property Rights) in the Aggregated Data and may use Aggregated Data for any purpose and without restriction or obligation to you.

5. During the Term, if Customer or its Personnel make any suggestions for changes, modifications or improvements to the Nishe Platform (those suggestions, the "Feedback"), all such Feedback shall be solely owned by Nishe. Customer shall do (and shall cause its Personnel to do) all that is necessary to assign the ownership of such Feedback to Nishe.

6. Unless agreed otherwise in writing, (i) Customer hereby grants Nishe the right to display Customer's name and logo on its website for marketing purposes, and (ii) Nishe shall have the right to display its name, logo or other branding anywhere on its Nishe Platform. If any testimonial or review was provided, Nishe shall be permitted to display such testimonial or review on its website.

7. All rights not expressly granted by either Party under these Terms of Service are reserved.

4. Privacy

Any Personal Information you provide to Nishe through the Nishe Platform will be handled in accordance with our Privacy Policy. 

1. You understand that Personal Information, including the Personal Information of Permitted Users will be treated in accordance with Nishe’s privacy policy located at www.nisheretail.com/privacy (“Privacy Policy”).

2. Personal Information Warranty.  You represent and warrant to, and covenant with Nishe that your Customer Data will only contain Personal Information in respect of which you have provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise have all authority, in each case as required by applicable laws, to enable Nishe to provide the Nishe Platform, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Nishe and to or from all applicable third parties.

5. Support

   1. Customer will generally have access to Nishe’s technical support services (“Support Services”) through email at info@nisheretail.com.

   2. Nishe shall use commercially reasonable efforts to make the Nishe Platform available during the Term; however, the Nishe Platform may not be available (A) for scheduled maintenance; (B) in the event of a Force Majeure; (C) if Nishe believes in good faith that Customer or any Permitted User has violated any provision of this Agreement; (D) to address any emergency security concerns; (E) if required to do so by a regulatory body or as a result of a change in applicable law; or (F) for any other reason as provided in this Agreement.

6. Fees and Payment

This section sets out what fees Customers are responsible for when using the Nishe Platform.

1. Platform Fees. Fees for using the Nishe Platform shall be stated in the applicable Order Form (the fees, the “Platform Fees”). For clarity, any reference to commission rates, transaction fee, or other fees agreed to via a web form on the Nishe Platform shall be considered part of the Platform Fees.

2. Professional Services Fees. Fees for any Professional Services, if any, shall be stated in the applicable Order Form (the “PS Fees”; together with the Platform Fees, the “Fees”). 

3. Payment Methods. If you are required to pay Fees under this Agreement, you must provide a valid method of payment to complete the Order Form. You agree and acknowledge that we may bill your payment method in accordance with this Agreement. 

4. Invoice and Payment. Unless stated otherwise in the applicable Order Form, Fees shall be invoiced to Customer, in advance, on a yearly basis and Customer shall pay such invoice within thirty (30) days from the invoice date. A late charge of 1.5% per month, or the maximum amount permitted by law, whichever is less, may be applied to all overdue amounts. Customer may not withhold or setoff any amounts due under this Agreement. Any Fees pre-paid or paid in advance are non-refundable.

5. Taxes. The Fees set out in this Agreement are subject to applicable taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Nishe.

7. Confidential Information

Nishe and Customer might share confidential information with each other – this section sets out the rights and responsibilities of both Nishe and Customer with respect to that confidential information. Except for limited circumstances, everyone must keep each other’s confidential information confidential. 

1. Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient or its Personnel; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. 

2. Confidentiality Covenants.  Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its rights granted hereunder or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own Personnel having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type. 

3. Exceptions to Confidentiality. Notwithstanding Section 7(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.

8. Disclaimer

This section sets out your understanding that the Nishe Platform may not always be available, or relied upon. 

1. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, NISHE DOES NOT WARRANT THAT THE NISHE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE NISHE PLATFORM. EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS OF SERVICE, THE NISHE PLATFORM (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY NISHE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. FURTHER, NISHE MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS WITH RESPECT TO ANY THIRD PARTY SERVICES AND NISHE AND ITS NISHE INDEMNITEES (AS DEFINED BELOW) SHALL BE NOT HELD LIABLE OR RESPONSIBLE FOR ANY OF THE THIRD PARTY SERVICES OR THE ACTIONS OR INACTIONS OF THE APPLICABLE THIRD PARTY PROVIDERS.

2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NISHE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, NISHE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY RELATING TO RESTRICTED DATA, OR THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE NISHE PLATFORM (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. EXCEPT TO THE EXTENT THAT AN EXPRESS INDEMNITY IS PROVIDED IN THESE TERMS OF SERVICE, NISHE HAS NO OBLIGATION TO INDEMNIFY, DEFEND OR HOLD HARMLESS CUSTOMER OR ANY OF ITS SUCCESSORS, ASSIGNS, SHAREHOLDERS, PARTNERS, DIRECTORS, OFFICERS, AGENTS, AFFILIATES, SUBSIDIARIES, OR PERSONNEL, INCLUDING AGAINST CLAIMS RELATED TO PRODUCT LIABILITY OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THE NISHE PLATFORM MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND NISHE IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.

9. Indemnities

This section sets out your responsibility to defend and indemnify us for any claims and losses associated with a claim brought against us that relates to your use of the Nishe Platform.

1. You (the “Indemnifying Party” for the purpose of this Section 9(a)) will (i) defend Nishe, and its officers, directors, Personnel and agents (each, a “Nishe Indemnitee”; Nishe and Nishe Indemnitees together, the “Indemnified Parties” for the purpose of this Section 9(a)) from any and all claim, demand, action, suit or proceeding brought by a third party (the “Claim”), and (ii) indemnify and hold harmless Indemnified Parties for any and all damages, fines, penalties, losses, liabilities (including settlements and judgments), costs and expenses (including interest, court costs, reasonable fees and disbursements of lawyers, accountants and other experts and professionals or other reasonable fees and expenses of investigation, litigation, settlement or other proceedings or of any claim, default or assessment)(the “Losses”), arising from, in connection with, or related to: (A) your provision of Customer Data in a manner not compliant with these Terms of Service; (B) your breach of Sections 1(c) or 4(b); or (C) your unauthorized use of the Nishe Platform ((i) and (ii) together the “Customer’s Indemnity Obligations”). 

2. Nishe (the “Indemnifying Party” for the purpose of this Section 9(b)) will (i) defend Customer and its officers, directors, Personnel and agents (each, a “Customer Indemnitee”; Customer and Customer Indemnitees together, the “Indemnified Parties” for the purpose of this Section 9(b)) from any and all Claim, and (ii) indemnify and hold harmless Indemnified Parties for any and all Losses arising from, a direct infringement or misappropriation of a third party’s Canadian patent, trademark or copyright as a result of the Indemnified Parties’ authorized use of the Nishe Platform ((i) and (ii) together the “Nishe’s Indemnity Obligations”; Customer’s Indemnity Obligations and Nishe’s Indemnity Obligations, together, the “Indemnity Obligations”). However, Nishe’s Indemnity Obligations shall not apply to the extent that the Claim arose from: (i) any modification of the Nishe Platform made by the Indemnified Parties or any other parties without the written consent of Nishe, (ii) use of the Nishe Platform in combination with hardware, software or other products or services not provided by Nishe, (iii) Indemnified Parties' continued use of the Nishe Platform after Nishe has provided notice under Section 9(c), (iv) Third Party Services, (v) any feature, element, component, functionality or any other part or portions of the Nishe Platform created by Nishe in accordance with Indemnified Parties’ requirements and/or specifications, or (vi) Indemnified Parties’ breach of this Agreement.

3. Alternatives. If a Claim is received for which Nishe’s Indemnity Obligations apply, or if such Claim may be possible in the opinion of Nishe, Nishe shall provide written notice thereof to Customer and may make available one of the following alternatives (the "IP Alternatives"): (a) modify or replace the Nishe Platform, or the affected component or part thereof, without impairing in any material respect the functionality or performance of the Nishe Platform; (b) obtain the right for Customer to continue using the Nishe Platform; and (iii) if IP Alternatives (a) and (b) are not commercial feasible, as determined by Nishe, Nishe may terminate the applicable Order Form and refund any pre-paid Platform Fees pro-rated to the date of termination.

4. Indemnification Procedures. Indemnity Obligations are contingent upon: (i) the Indemnified Party promptly notifying the Indemnifying Party in writing of any Claim for which the Indemnified Parties have a right under the applicable Indemnity Obligations (each an "Indemnified Claim"), provided that, the Indemnifying Party shall not be excused from its Indemnity Obligations unless the Indemnifying Party is materially prejudiced from such delay, in which case, the Indemnifying Party shall be excused from its Indemnity Obligations only to the extent prejudiced; (ii) the Indemnified Party reasonably cooperating during defense and settlement efforts at no charge to the Indemnifying Party; and (iii) the Indemnifying Party not making any admission, concession, consent judgment, default judgment or settlement of the Indemnified Claim or any part thereof without the written consent of Indemnified Party.

10. Limitation of Liabilities

This section explains that Nishe’s liability relating to your use of the Nishe Platform is limited to what you’ve paid to use the Nishe Platform during a specified period of time, and does not include payment of damages for certain kinds of loss. 

1. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY AND OBLIGATIONS OF NISHE IN CONNECTION WITH, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED (I) THE AMOUNT OF PLATFORM FEES PAID BY YOU IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY OR OBLIGATION; OR (II) IF THE PLATFORM HAS BEEN PROVIDED TO YOU WITHOUT THE PAYMENT OF PLATFORM FEES, $100 USD (THE “GENERAL CAP”). THE LIMITS OF LIABILITY IN THIS SECTION ARE CUMULATIVE AND NOT PER-INCIDENT.

2. THE PARTIES SHALL BE LIABLE ONLY FOR DIRECT DAMAGES, AND SHALL NOT BE LIABLE FOR LOSS OF PROFITS, DAMAGE TO REPUTATION, LOSS OF GOODWILL, LOSS OF REVENUES, OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

3. TO THE EXTENT PERMITTED BY LAW, THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 SHALL APPLY (i) REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE; (ii) EVEN IF NISHE IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iii) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF LIABILITY, THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

4. THE LIMITATIONS SET OUT IN THIS SECTION 10 SHALL NOT APPLY TO: (I) CUSTOMER’S BREACH OF SECTION 1(c) OR 4(b), (II) CUSTOMER’S MISUSE OR MISAPPROPRIATION OF NISHE’S INTELLECTUAL PROPERTY RIGHTS, (III) EITHER PARTY’S INDEMNITY OBLIGATIONS SET OUT IN SECTION 9, OR (IV) EITHER PARTYS’ GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. HOWEVER, EITHER PARTY’S TOTAL LIABILITY AND OBLIGATIONS IN CONNECTION WITH, ARISING OUT OF OR RELATED TO SUCH PARTY’S INDEMNITY OBLIGATIONS SET OUT IN SECTION 9 SHALL NOT EXCEED TWO TIMES (2X) THE GENERAL CAP.

11. Term and Termination

This section sets out the duration during which these Terms of Service apply.

1. Term. These Terms of Service are effective on the earlier of (i) your first use of the Nishe Platform, and (ii) the Subscription start date indicated on the Order Form, and shall continue until these Terms of Services are terminated by either Party in accordance with the provisions of this Agreement (the “Term”). If Customer entered into one or more Order Forms, such Order Forms may specify an initial period of Subscription and unless agreed otherwise in writing, such Subscription shall automatically renew for the same period as the initial period of Subscription. If Customer desires not to renew, it must notify Nishe in writing of its intention not to renew an Order Form at least thirty (30) days prior to the renewal. For greater certainty, if your Subscription to the Nishe Platform was not pursuant to an Order Form, these Terms of Service shall continue to apply for so long as you use the Nishe Platform.

2. Termination for Convenience. We may terminate these Terms of Service and/or any Order Form at any time by providing you thirty (30) days’ written notice, which may be via email (at your current email address on file with us) or through the Nishe Platform. 

3. Termination for Breach. A Party (the “Non-Breaching Party”) may terminate these Terms of Service and/or the applicable Order Form if the other Party (the “Breaching Party”) materially breaches these Terms of Service and/or the applicable Order Form. The Breaching Party shall be considered to be in material breach if any of the following events occur: (i) 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; (ii) the Breaching Party is in breach of a material, non-monetary term, condition, or provision of this Agreement and such breach is not cured within thirty (30) days of the written notice; or (iii) the Breaching Party undertakes liquidation, dissolution or winding-up, is unable to pay its debts or obligations as they become due, makes an assignment for the benefit of creditors, becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under federal, provincial or state law. The written notice for termination shall include a detailed explanation of the material breach justifying the termination in accordance with this Section 11(c).

4. The Parties intend that the termination rights set out in this Section 11, and termination rights provided in any Order Form, if any, are the exclusive rights and remedies for termination of each Party.

5. Suspension. Nishe may suspend any Subscription, if (i) any invoice, and any interest accrued thereon, remains unpaid after Nishe has notified Customer of an outstanding invoice, or (ii) Customer or its Permitted Users violate any material terms of this Agreement. The exercise of this suspension right shall not be considered a breach of this Agreement by Nishe. Any suspension of the Nishe Platform by Nishe pursuant to the terms of these Terms of Service will not excuse Customer from its obligation to make payments under these Terms of Service. 

6. Survival. The following Sections, together with any other provision of these Terms of Service which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms of Service, will survive expiration or termination of these Terms of Service for any reason: Sections 1(b) (last sentence), 3, 4, 6 (to the extent Fees are outstanding), 7, 8, 9, 10, 11(f), and 12. 

12. General Provisions

This section sets out additional administrative terms about the agreement created by these Terms of Service.  

1. Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Nishe, to the following address: info@nisheretail.com; and (ii) if to Customer, to the current postal or email address that Nishe has on file with respect to Customer. Nishe may change its contact information by posting the new contact information on its website or by giving notice thereof to you. You are solely responsible for keeping your contact information on file with Nishe current at all times during the Term.

2. Assignment. You may not assign this Agreement to any third party without Nishe’s prior written consent.  Nishe may assign this Agreement or any rights under this Agreement to any third party without your consent. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.

3. Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. 

4. Export Restrictions.  You will comply with all export laws and regulations that may apply to its access to or use of the Nishe Platform. 

5. Construction.  Except as otherwise provided in this Agreement, the Parties’ rights and remedies under these Terms of Service are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise.  The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of these Terms of Service are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.

6. Precedence. In the event of any conflict between an Order form and these Terms of Service, the conflict shall be resolved in favour of these Terms of Service, unless the Order Form clearly states that it amends or prevails over these Terms of Service.

7. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including fire, flood, hurricane, earthquake, acts of God, pandemic, epidemic, war, terrorism, explosion, riots, civil disorders, rebellions or revolutions, lawful acts of governmental authorities, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).

8. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

9. Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

10. Independent Contractors. The relationship of the Parties is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.

11. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.

12. Amendments. Subject to the following sentence, no amendment, supplement or modification of this Agreement shall be binding unless executed in writing by the Parties. NOTWITHSTANDING THE PRECEDING SENTENCE, NISHE MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING YOU PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY NISHE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO YOU OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER). 

13. English Language. It is the express wish of the Parties that these Terms of Service and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

14. Customer Terms. No terms in any purchase order or other order forms of Customer, other than the identification of the product and/or services being purchased, the applicable pricing and the address for invoicing shall be binding on Nishe, and all such terms are hereby expressly rejected.

13. Definitions

Some of the capitalized terms used in the Terms of Service are defined here, while others are defined throughout bolded and in quotation marks. 

1. “Customer Data” means any data, information, content, records, and files that Customer or any of its Permitted Users loads or enters into, transmits to, or makes available to the Nishe Platform, including Personal Information.

2. "Intellectual Property Rights" means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets and know how, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.

3. “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.

4. “Nishe Platform” means the online platform that helps connect brands and merchants to users owned and operated by Nishe Retail Technologies Inc. and any Modification thereto. For clarity, the term Nishe Platform does not include Third Party Services.

5. “Personal Information” means information about an identifiable individual. 

6. “Personnel” means a Party’s employee or contractor.