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Effective October 4, 2022
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These Terms of Service contain an arbitration provision. Please review the Arbitration section for details.
The Solutions Terms apply to your access and use of any of the above Solutions, whether originally included in your Thryv package, added later as an upgrade, or subsequently provided to you as part of our enhancement of the Thryv software. We will endeavor to provide you prior notice of the removal of any material feature of Thryv or your Thryv Solution. We also reserve the right to offer or provide trials or tests of new Solutions or features in development (“beta” features or solutions) from time to time, and to discontinue any such “beta” features or Solutions at any time without notice or obligation to you, and/or to thereafter offer any formerly free “beta” feature or Solution as a paid add-on or part of a higher Thryv package level.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL HAVE NO LIABILITY WITH RESPECT TO ANY SERVICES OR FEATURES PROVIDED TO YOU AT NO COST. THRYV, THRYV SOLUTIONS AND RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS. WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED OR ARISING BY STATUTE OR OTHERWISE IN LAW OR EQUITY OR BY CUSTOM OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT (i) THRYV, THRYV SOLUTIONS OR RELATED SERVICES WILL MEET YOUR NEEDS OR REQUIREMENTS, (ii) THE OPERATION OF THRYV, THRYV SOLUTIONS OR RELATED SERVICES WILL BE CONTINUOUS OR FREE OF DEFECTS, ERRORS OR INACCURACIES, (iii) THE FUNCTIONS CONTAINED IN THE THRYV SOLUTIONS WILL OPERATE IN ALL THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU, (iv) YOUR DATA WILL BE SAFE FROM UNAUTHORIZED ACCESS, (v) YOUR THRYV SOLUTIONS WILL BE AVAILABLE OR ACCESSIBLE AT ANY GIVEN TIME, OR (vi) YOUR USE OF THRYV WILL COMPLY WITH ALL APPLICABLE LAWS. Furthermore, and without limiting the generality of the foregoing, we do not warrant and you expressly disclaim any reliance on any statements or representations, including estimates, not contained in the Agreement.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR OTHER EXEMPLARY DAMAGES, OR FOR LOSS OF PROFITS OR REVENUE, OR LOSS OF BUSINESS, OR LOSS OF GOODWILL OR REPUTATION, OR LOSS OF USE OR DATA. THE LIMITATION OF LIABILITY IN THIS SECTION SHALL APPLY REGARDLESS OF THE NATURE, TYPE OR FORM OF THE CLAIM, WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, EQUITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF THRYV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE. FURTHER, WE WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (I) YOUR INABILITY TO USE THRYV OR ANY SOLUTION, INCLUDING AS A RESULT OF ANY (A) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OR ACCESS TO THRYV OR ANY SOLUTION, (B) OUR DISCONTINUATION OF THRYV OR ANY SOLUTION, OR (C) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF THRYV OR ANY SOLUTION FOR ANY REASON; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (III) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THRYV OR ANY SOLUTION; OR (IV) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU HAVE PAID UNDER YOUR ACCOUNT FOR THRYV DURING THE 12 MONTHS PRIOR TO ANY CLAIM.
The limitations in this Section shall apply notwithstanding any failure of essential purpose under this Agreement. To the max extent permitted by applicable Law, we are not liable to you for any deviation from or change in our policies, practices, and procedures.
You understand and agree that we have set our prices and entered into this Agreement with you in reliance upon the limitations of liability set forth in these Terms and Conditions, which allocates risk between us and form the basis of a bargain between the parties.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude either party from seeking action by federal, state, or local government agencies. You and we also have the right to bring qualifying claims in small claims court. In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.
Neither you nor we may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or our individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. The arbitrator may award in the arbitration the same damages or other relief available under applicable Law, including injunctive and declaratory relief, as if the action were brought in court on an individual basis. Notwithstanding anything to the contrary in the foregoing or herein, the arbitrator may not issue a “public injunction” and any such “public injunction” may be awarded only by a federal or state court. If either party seeks a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party’s claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator.
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms and Conditions will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms and Conditions. This Section of the Terms and Conditions will survive the termination of your relationship with us.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
If the parties do not reach a resolution of the dispute pursuant to the above-mentioned dispute resolution mechanism within a period of twenty-one (21) business days after the circumstances giving rise to the dispute first originated or occurred, the dispute may be referred by either party to arbitration in accordance with the provisions of this Section 34(d). Judgment upon the award rendered in any such arbitration may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and enforcement, as the law of such jurisdiction may require or allow.
Where any dispute is to be settled by arbitration, the dispute shall be governed by, and constitute a submission for the purposes of the Arbitration Act, 1991 (Ontario) (the “Act”), except as may otherwise be expressly set out in this Agreement.
To resolve any dispute by arbitration, there shall be one (1) arbitrator agreed to by the parties or, if the parties are unable to agree within five (5) days after demand for arbitration is made, selected in accordance with the Act. Any arbitrator appointed under the Act shall have at least ten (10) years of experience in complex, commercial engagements in the area that is generally the same as the issue that is the subject of the dispute.
Each party shall pay its own legal fees and one-half of all other arbitration expenses and costs, subject to final apportionment by the arbitrator. The arbitrator shall apply the laws of Ontario and Canada as applicable and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no power to amend this Agreement. Any award rendered pursuant to such arbitration shall be final and binding on the parties and there will be no appeal of that determination on any ground, and judgment on such award may be entered in any court having competent jurisdiction thereof. A party may recover its legal fees incurred in any such enforcement action. The language of the arbitration shall be English and the exclusive place of arbitration shall be Toronto, Ontario. The decision of the arbitrator shall be confidential, except to the extent it is necessary to enforce such decision in any court.
The parties intend, and will take all reasonable action necessary or desirable to ensure, that there be a speedy resolution to any dispute, and the arbitrator will conduct the arbitration of the dispute with a view to making a determination and order as soon as possible.
The above mentioned dispute resolution and arbitration provisions shall not apply to and will not bar litigation regarding any claims to prevent the expiry of a limitation period, or either party from seeking and obtaining from a court of competent jurisdiction any equitable, interim, or provisional relief, including a temporary restraining order or other injunctive relief, to prevent a party’s material breach or non-performance, or specific performance. Either party may at any time, without inconsistency with this Agreement, seek from a court of competent jurisdiction any equitable, interim or provisional relief only to avoid irreparable injury.