Terms and Conditions

July 26, 2022

can identify the specific Click spikes entity providing services to it in Merchant’s Click spikes Services Agreement (as defined below). The
Terms apply to: (i) Merchant’s use of Click spikes Services; (ii) the use of Click spikes Services by third parties authorized by Merchant through
Merchant’s Click spikes account to use Click spikes Services and Merchant User Content (as defined below); and (iii) the use by such authorized
users of any additional software, hardware, or other services provided, referred, or recommended by us or third parties as part of, or for use
with, Click spikes Services. 

Please read the Terms carefully before using Click spikes Services. By accessing, using, or continuing to use Click spikes Services, the Merchant
agrees to be legally bound by the Terms and all terms, policies, and guidelines incorporated by reference into the Terms. If Merchant does
not agree with the Terms in their entirety, Merchant may not use Click spikes Services. In the event of any conflict between the Terms and
the terms and conditions of a Merchant’s Sales Quote (as defined below), the Merchant’s Sales Quote shall govern and be paramount. 

In the Terms, Merchant and its staff members to whom Merchant gives access to the Merchant’s Click spikes account are called “Subscribers”,
and Merchant’s customers who use Click spikes Services (for example, to view or use Click spikes Services designed for use by those parties) are
called “Customers”. Users of Click spikes Services, whether they are Subscribers or Customers, are called “Users”. 

Click spikes reserves the right to change or modify any of the terms and conditions contained in the Terms, or any policy or guideline
applicable to Click spikes Services, at any time upon thirty (30) days notice and in its sole discretion. If Merchant does not
agree with the changes, Merchant must forthwith expressly advise Click spikes of same in writing and can cancel its Merchant account with
Click spikes effective upon the expiry of the then-current term of the Merchant’s Click spikes Services Agreement (as defined below). In such an
the event, until such expiry, the prior Terms will remain in force.
Notwithstanding the foregoing, if Merchant renews its Click spikes Services Agreement passed the then-current term thereof, it shall be
deemed to have accepted the then most current version of the Terms from and after the renewal date. Subject to the foregoing, any changes or
modifications will be effective immediately upon the posting of the same on the Site, and Merchant’s continued use of Click spikes Services after
such time will constitute the Merchant’s acceptance of such changes or modifications. 

The merchant should from time to time review the Terms and any policies and documents incorporated therein to understand the terms and
conditions that apply to the Merchant’s use of Click spikes Services. The Terms will always show the “last updated” date at the top. 

Click spikes Services are for Merchant’s own use only. The merchant may not resell, host, publish, lease or provide in any other way to anyone
else, except as expressly permitted by Click spikes or under this Agreement. For the purposes of the Terms, the defined terms referenced
below have the following meanings. Any capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the
Merchant’s Sales Quote. 

“Effective Date” means the earlier of: i) the Go-Live Date and ii) the Outside Payment Date. “Go-Live Date” means the date that Click spikes Services are ready to go live in Merchant’s business. “Hardware” means the iPads and other related hardware technology required by Merchant to utilize Click spikes Services and acquired by Merchant from Click spikes, as detailed in the Sales Quote. “HPP Agreement” means an agreement between Merchant and Click spikes pursuant to which
Merchant agrees to pay for the cost of any Hardware described therein over time. “Outside Payment Date” has the meaning set forth in Merchant’s Sales Quote. “Quote Created Date” has the meaning set forth in Merchant’s Sales Quote. “Sales Quote” means the agreement entered into by and between Merchant and
Click spikes pursuant to which Merchant has agreed to obtain Click spikes Services from  Click spikes . “ Click spikes Services Agreement”
means collectively Merchant’s Sales Quote, the Terms, the HPP Agreement (if any) and any other agreements entered into by and between
Click spikes and Merchant relating to the provision of Click spikes  Services to Merchant.

1. Privacy

Please refer to  Click spikes ’s Privacy Notice, available at www.clickspikes.com/privacy-policy for information on how Click spikes collects, uses and discloses personally identifiable information of Users. By using Click spikes Services, Merchant agrees to our use, collection and disclosure of personally identifiable information in accordance with the Privacy Notice. Furthermore, as a Subscriber, the Merchant agrees to establish and maintain a privacy policy that complies with local laws in Merchant’s jurisdiction is consistent with the Click spikes Privacy Notice. Merchant agrees that Click spikes may collect, maintain and use non-personally identifiable data obtained by it through the provision of Click spikes Services, including User Content, in aggregate form for its business purposes, and the improvement and enhancement of Click spikes Services, and Merchant grants Click spikes an irrevocable, perpetual, non-exclusive right to use such data for such purposes.

2. Registration Data; Account Security 

If Merchant registers for an account on Click spikes Services, Merchant agrees to (a) provide and maintain accurate, current and
complete information as may be prompted by any registration forms on Click spikes Services (“Registration Data”); (b) maintain the security of Merchant password(s); (c) maintain and promptly update the Registration Data and any other information Merchant provides to  Click spikes , and keeps it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information or data Merchant provides to Click spikes  directly or through Click spikes Services. Merchant is responsible for all activity on Merchant’s Click spikes account, and for charges incurred by and through Merchant’s Click spikes account.

3. Fees; Charges; Taxes 

Click spikes shall commence charging the software license fees described in the Merchant’s Sales Quote on the Effective Date. Merchant
shall pay Click spikes any fees specified in its Sales Quote, in accordance with the timing and currency specified in the Sales Quote.
Overdue amounts shall accrue interest at a rate which is the lesser of: two percent (2%) per month or the maximum rate allowable by law.
Merchant is responsible for all taxes applicable to the fees and charges in any applicable jurisdiction. All pre-paid licenses, subscriptions, or
other fees (including professional services such as installation and training) are non-refundable and subject to any additional payment or
other terms or conditions provided for in the Merchant’s Click spikes  Services Agreement. 

Professional services must be booked at least fifteen (15) days in advance. Payment is required prior to booking professional services.
Cancellation or rebooking must be made a minimum of three (3) days prior to the date professional services are scheduled to be provided, failing
which any rescheduling or cancellation will be subject to a one hundred dollar ($100) change fee. If Merchant cancels or changes the dates of
any scheduled professional services appointment, Merchant will be given a credit (less change fee) for such services which must be used within
sixty (60) days of the Effective Date, failing which the credit expires and constitutes a non-refundable payment to  Click spikes .   

Except as expressly provided in the applicable Sales Quote, Click spikes reserves the right, exercisable at any time prior to the
commencement of any renewal term, to discontinue, during any such renewal term, any promotion or discount provided to Merchant on fees for
Click spikes Services. In the event Click spikes choose to exercise such right, the fees payable by Merchant for Click spikes Services during
such renewal term and thereafter shall be  Click spikes ’s standard list prices for the applicable services in effect at the time of the
applicable renewal. Any such change in fees will be communicated to Merchant by written notice at least thirty (30) days prior to the end of
the then-current term, and shall take effect upon the commencement of the renewal term, unless Merchant terminates the Click spikes Services
Agreement by delivery of written notice to Click spikes within ten (10) days of receiving notice of such fee changes. 

4. Ownership, Copyright and Trademarks 

The content made available by Click spikes through Click spikes Services, including all information, content, data, logos, marks,
interfaces, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is called “Content”. Content provided by Users is called “User Content”. For example, data about its Customers that Merchant provides to Click spikes and, data about its payments, menu, or operations that
Merchant provides to Click spikes or is accessible by Click spikes through Click spikes Service is User Content of that Merchant, and Content that a
User enters into any Click spikes database is User Content of the User. User Content is that User’s property and may only be utilized by
Click spikes as expressly authorized herein. Without restricting the the generality of the foregoing, it is expressly agreed that Click spikes is
granted a limited license to utilize any User Content as necessary to provide and perform Click spikes Services, including to provide support
to Users. Other than the User Content, all Content and all software available on Click spikes Services or used to create and operate
Click spikes Services is the property of Click spikes or its licensors, and is protected by Canadian and international patent, trademark, and
copyright laws, and all rights to Click spikes Services, such Content and such software is expressly reserved. All trademarks, registered
trademarks, product names, and company names or logos mentioned in Click spikes Services are the property of their respective owners.
Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not
constitute or imply endorsement, sponsorship or recommendation of them by  Click spikes . Throughout the term of Click spikes Services Agreement,
Click spikes may utilize Merchant’s business name, Merchant’s logo and Merchant’s other registered or unregistered trademarks, trade names, brands and/or service marks, on the Site and in other Click spikes  promotional material, to promote the business of  Click spikes . Click spikes may use and shall be the exclusive owner of any feedback, suggestions, improvements or ideas (“Feedback”) Merchant provides or has provided to Click spikes regarding Click spikes  Services. This applies to Feedback provided to Click spikes at any time in any format. Merchant assigns all intellectual property rights in Feedback to Click spikes immediately upon communication of such Feedback to Click spikes or its representatives. Click spikes may use Feedback for any purpose without compensation or attribution to Merchant and Merchant forever waives and surrenders any and all rights in Feedback. If Merchant authorizes third parties to access Merchant’s User Content through Click spikes Services, Merchant agrees that we are permitted to provide to them the User Content, and also agrees that we have no responsibility or liability for their use of such User Content. Any such access shall be governed by any applicable end user or API agreements or terms applicable to such third party and may be subject to fees charged by such third party. Without limiting the generality of the foregoing, Merchant is responsible for all business continuity, data loss, business interruption, or other risks that may arise out of Merchant’s use of Click spikes Services. Click spikes denies, disclaims, and waives any liability for any loss that may occur arising through use of Click spikes Services, including, but not limited to, loss of data, business interruption, incorrect calculation of any amount, including taxes or amounts due from Merchant’s Customers, or loss of Merchant’s goodwill. Click spikes Services are provided on an “as is” basis. Merchant acknowledges and accepts all risks associated with using Click spikes Services and releases Click spikes from any claim or liability in relation thereto. Merchant’s User Content is Merchant’s responsibility. We have no responsibility or liability for it, or for any loss or damage Merchant’s User Content may cause to Merchant or other people. 

5. Merchant Limited License of Merchant User Content to  Click spikes

We do not claim any ownership interest or rights in Merchant User Content except as provided for under the Terms, but we do need the right to use Merchant User Content to the extent necessary to provide Click spikes Services, now and in the future. Therefore, with respect to any User Content posted to, distributed or otherwise accessible through Click spikes Services, Merchant (a) grants Click spikes a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content, i) in any manner as may be necessary to provide Click spikes Services, ii) for any purposes for which Click spikes  Services from time to time use such User Content, and iii) to ensure the security of Click spikes Services, systems and technology; (b) represents and warrants that (i) Merchant owns and controls all of the rights to the User Content Merchant posts, distributes or is made otherwise accessible to Click spikes by Merchant through Click spikes  Service, or Merchant otherwise has the lawful right to post and distribute that User Content, to or through Click spikes Services, and (ii) the use and posting or other transmission of such User Content does not violate the Terms and will not violate any rights of or cause injury to any person or entity. 

If Merchant’s User Content is intended for the use of other Users, Merchant also grants us and our partners a non-exclusive, royalty-free, transferable right to sublicense such User Content to such Users for their use in connection with their use of Click spikes Services in accordance with all applicable privacy laws and regulations. These licenses from Merchant are non-exclusive because Merchant has the right to use Merchant User Content elsewhere. They are royalty-free because we are not required to pay Merchant for the use of Merchant User Content on Click spikes Services. They are transferable because we need the right to transfer these licenses to any successor operator of Click spikes  Services. Our rights to “modify, adapt, translate, and create derivative works from” are necessary because the normal operation of Click spikes Services do this to Merchant User Content when it processes it for use in Click spikes Services. 

In addition to the foregoing, Merchant agrees that Click spikes may compile, collect, copy, modify, publish, and otherwise use User Content in an aggregated fashion (excluding any parts of the User Content that represents personally identifiable information of an individual) (“Aggregated Anonymous Data”) for any lawful purpose. Click spikes shall be the owner of the Aggregated Anonymous Data, and may, without limitation, use the Aggregated Anonymous Data to analyze, improve, support, and operate Click spikes Services, combine it with data from other sources, and share it with third parties and otherwise use it for any lawful business purpose, both during the currency, and after the termination, of the Merchant’s Click spikes Services Agreement, including without limitation, in order to generate industry benchmarks or best practices guidance, recommendations or similar reports for distribution to and consumption by  Click spikes , Subscribers and other third parties. 

Notwithstanding the foregoing, it is expressly acknowledged and agreed that any and all Customer information and data, including personally identifiable information, of any Customer of Merchant which is collected by Click spikes through the use by the Customer of Click spikes’s reservations, waitlist and online ordering services and Gift Card Services (as defined below) (collectively, the “RWOO Customer Data”) shall be the sole property of Click spikes and not Merchant. To the extent allowable by applicable law and authorized by the Customer in question, Click spikes may share RWOO Customer Data with Merchant, solely for the purpose of Merchant fulfilling Customer reservation, waitlist, online ordering, Gift Card Services or other requests and for no other purposes. Merchant agrees to utilize all RWOO Customer Data solely for the purposes for which the data was provided to Merchant, and Merchant agrees to at all time comply with applicable privacy and other laws associated with the handling and use of such RWOO Customer Data.

6. Our Limited License of Content to Merchant 

Click spikes grants Merchant a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access Click spikes  Services and to view, copy and print the portions of the Content available to Merchant through Click spikes Services for the limited purpose of using Click spikes Services as contemplated by Merchant’s Click spikes Services Agreement. Such license is subject to the Terms, and specifically conditional upon the following: (i) Merchant may only view, copy and print such portions of the Content for Merchant’s own use as contemplated by Click spikes Services; (ii) Merchant may not modify or otherwise make derivative works of the Content, or reproduce, distribute or display the Content except as expressly permitted in the Terms; (iii) Merchant may not remove or modify any copyright, trademark, or other proprietary notices that have been placed in the Content; (iv) Merchant may not use any data mining, robots or similar data gathering or extraction methods; and (v) Merchant may not use Click spikes Services or the Content other than for their intended purpose. Merchant may not assist any third party in carrying out these prohibited activities. When Merchant uses Click spikes Services to publish any menu, online ordering or similar functionality, a Click spikes logo or similar attribution with a link to  Clickspikes .com will be installed. Except as expressly permitted above, any use of any portion of the Content without the prior written permission of Click spikes is strictly prohibited and may result in the termination of the license granted in this section without notice, and immediate termination of the Merchant’s Click spikes Services Agreement and Merchant account with us. Any such unauthorized use may also violate applicable laws, including without limitation patent, copyright and trademark laws. Unless explicitly stated herein, nothing in the Terms may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license in this section is revocable by Click spikes at any time without notice or warning. Merchant represents and warrants that its use of Click spikes Services and the Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law or regulation.

7. Using Click spikes Services and Marketing Services 

Click spikes Services may include services whereby Merchant, developers, or third parties hired by Merchant use Click spikes Services to market Merchant’s products and services. This section contains terms and conditions applicable to Merchant’s use of Click spikes Services for that purpose (a “ Click spikes Marketing Initiative”). If Merchant procures a third party to develop a Click spikes Marketing Initiative for Merchant, this section applies to Merchant and its use of the Click spikes Services, and Merchant is responsible for the third party’s compliance with this section to the same extent as though Merchant were developing the Click spikes Marketing Initiative itself. Click spikes grants Merchant a limited, revocable, non-exclusive, non-sublicensable license to use Click spikes Services as provided by Click spikes , in the manner permitted by the Terms. Such license does not license any other Content to Merchant. If Merchant wishes to use Merchant’s Click spikes Marketing Initiative to display or deliver any Content provided to us by a Subscriber, Merchant must obtain the prior agreement of that Subscriber to that use, by obtaining a license from the Subscriber, for Merchant’s use of that Content. This limited license is subject to the usage restrictions set forth in Section 6 above. 

8. Hardware for Click spikes Services

Click spikes Services are intended to operate together with dedicated hardware. To minimize the risk of security breaches and technology malfunctions, Merchant agrees to use dedicated hardware for Click spikes  Services. For example, Merchant will ensure that Merchant’s employees do not install apps on the iPads; do not use the iPads to surf the web, and such. If Merchant does not use dedicated hardware, we reserve the right to not support Merchant’s Click spikes Services as the other applications may cause conflicts or performance issues with Click spikes  Services. 

Click spikes uses mobile device management (“MDM”) software to provide Click spikes Services, and Merchant acknowledges and agrees that, as a condition of receiving Click spikes Services, any hardware deployed by Merchant to utilize Click spikes Services shall be enrolled in the MDM program, and Click spikes shall have the right to access and control any such hardware through the MDM for any and all the purposes related to providing the Click spikes Services to Merchant, and for such other purposes as are expressly set forth herein. Merchant shall take any and all such steps as may be necessary in order to grant such access and control to Click spikes as Click spikes may require, in its sole discretion. The MDM software constitutes a third-party service for the purpose of the Terms. Please refer to Section 13 below for each party’s obligations with respect to such third-party service.

9. Using Click spikes Gift Card Services 

Click spikes Services may include certain gift card services (the “Gift Card Services”) which supports the issuance and management of gift cards to Customers.
If Merchant offers gift cards to its Customers through Gift Card Services, Merchant (not us) is the issuer and administrator of such gift cards, which must: (i) not be reloadable; (ii) not be used for payment for a credit account; (iii) be “closed loop” gift cards that may only be used for purchase of goods and services from Merchant and no other merchant or company; and (iv) not assess or impose any fees or charges on the issuance, activation, maintenance, or redemption of gift cards. Merchant further agrees: (i) not to issue a gift card with a value in excess of one-thousand dollars ($1,000) or add value to a previously issued gift card so that the total funds loaded on a gift card in any single day exceed one-thousand dollars ($1,000); (ii) not to issue more than one thousand dollars ($1,000) in gift cards to any single person in any one day; (iii) not to impose an expiration date on the gift card, and any unused balance of a gift card must remain available to the holder of the gift card until fully redeemed, even if Merchant’s Click spikes account is closed, suspended, or terminated; and (iv) not to provide a cash refund from or cash back on gift cards except to the extent required by applicable law. When issuing a gift card, Merchant must clearly disclose on the gift card itself, and on any packaging and promotional materials associated with the gift card, any restrictions, limitations and terms and conditions in respect of the use of such gift card, as well as contact information for the purpose of obtaining information about the gift card, including any remaining balance. All gift cards and the funds associated with gift cards are Merchant’s sole property. In addition to Merchant’s other indemnification obligations under the Terms, any liability for the use or misuse of Merchant’s gift cards, including any unfunded gift card balance or fraudulent activity, unauthorized use or losses related to a gift card or Customer, and any third party claims arising from or relating to Merchant’s gift cards, are Merchant’s sole responsibility. Merchant is solely responsible for compliance with federal, provincial/state, territorial, and local laws, rules and regulations that apply to its gift cards, including but not limited to notice, disclosure requirements and language requirements, expiration dates and fees, refunds, unclaimed property or escheat requirements (such as tracking, reporting, and remittance of unclaimed property balances in all states), and customer service for buyers and holders of gift cards. Merchant represents and warrants that the balance associated with its gift cards will be at all times appropriately funded by deposits placed by the Customers with Merchant in connection with such gift cards in an amount that is no less than 100% of the total amount of currency represented as active and available to Customers of the current day’s gift card balance. Merchant will be responsible for overseeing and managing such funding, and responsible and liable for any failure of the gift cards to be fully funded.

10. Other Restrictions on Use of Click spikes Services 

Any party’s use of Click spikes Services is also subject to the following restrictions. Merchant (alone or by assisting or enabling any other party) may not: (i) interfere or attempt to interfere in any manner with the proper workings of Click spikes Services, or create or distribute any Click spikes Marketing Initiative that adversely affects the functionality or performance of Click spikes Services or adversely impacts the behavior of other applications using Click spikes Services; (ii) misrepresent Merchant’s identity or intentions when communicating with us in relation to Click spikes Services, use the developer credentials licensed to a different individual or entity, allow Merchant credentials to be used by others, or mask Merchant’s usage of Click spikes Services; (iii) use Click spikes Services in association with, or as a component of, any website that in the sole discretion of Click spikes is determined to be obscene or otherwise commercially inappropriate; (iv) use Click spikes Services for any application that constitutes, promotes or is used in connection with spam, spyware, adware, other malicious programs or code; (v) use Click spikes Services in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, taxation or governmental reporting obligations or other regulatory obligations; (vi) replicate, in whole or in part, the “look and feel” of Click spikes  Services or portion of them; (vii) use a combination of visual, design, or functional elements that could reasonably be expected to cause confusion between Click spikes Services and Merchant’s Click spikes Marketing Initiatives among users; (viii) disparage or otherwise negatively represent Click spikes Services or do anything that could result in damage or dilution to the goodwill of Click spikes and its brand; (ix) use Click spikes Services for any application or service that attempts to replace or replicate the essential user experience or functionality of any or all Click spikes Services; (x) reverse engineer, decompile or otherwise attempt to extract the source code of Click spikes  Services or any part thereof; (xi) circumvent or render ineffective any IP address-based functionality or restriction imposed by Click spikes  Services; (xii) circumvent technological measures to prevent direct database access, nor manufacture tools or products to that effect; (xiii) build conversion functionality that converts Content from the Service to a competing or alternative product or service; or (xiv) at any time when Merchant is operating a Click spikes Marketing Initiative, solicit, interfere with or endeavour to entice away from us any of our Subscribers or other Users. Merchant agrees to carefully monitor Merchant’s use of Click spikes Services and ensure that it remains within reasonable operational limits for both Merchant’s own server capacity and for ours, when applicable. Click spikes has no responsibility to any person for any use or misuse of any User Content obtained through Click spikes Services. If Merchant is a Subscriber, Merchant should consider carefully whether Merchant wishes to give a Click spikes  Marketing Initiative services developer access to Merchant User Content through Click spikes Services. If Merchant wishes to revoke access to Merchant User Content through Click spikes Services, Merchant should change Merchant’s Click spikes Services password or revoke authorization of the Click spikes Marketing Initiative to Merchant Content. Click spikes  may monitor Merchant use of Click spikes Services for any reason, including but not limited to: quality assurance, improvement of  Click spikes products and services, and verification of Merchant compliance with the Terms. Merchant shall not interfere with such monitoring or otherwise obscure from Click spikes any aspect of Merchant use of the Click spikes Services. Merchant acknowledges that any use by us of Merchant’s Click spikes Marketing Initiative for such purpose will not constitute our agreement to any terms of use Merchant purports to require us to comply with in such use.

11. Using Social Media Areas and Click spikes Services 

Click spikes Services may include discussion forums, location-based services, menu, pricing, and establishment information, bulletin boards, review services or other forums in which Merchant or third parties may post reviews or other content, messages, materials or other items (“Social Media Areas”). If Click spikes provides such Social Media Areas, Merchant is solely responsible for Merchant’s use of such Social Media Areas and uses them at its own risk. User Content submitted to any Social Media Areas will be considered non-confidential. Merchant agrees not to post, upload to transmit, distribute, store, create or otherwise publish on Social Media Areas any of the following: (i) any message, data, information, text, music, sound, photos, graphics, code or other material that is unlawful,libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; (ii) content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; (iii) content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; (iv) content that impersonates any person or entity or otherwise misrepresents Merchant’s affiliation with a person or entity; (v) unsolicited promotions, political campaigning, advertising or solicitations; (vi) private information of any third party, including, without limitation, addresses, phone numbers, email addresses and credit card numbers, unless that third party has expressly consented to such use; (iv) viruses, corrupted data or other harmful, disruptive or destructive files; (v) content that is inaccurate, misleading, or unrelated to the topic of the Social Media Area(s) in which such Content is posted; or (vi) content that, in the sole judgment of  Click spikes , is objectionable or which restricts or inhibits any other person from using or enjoying the Social Media Areas  or Click spikes Services, or which may expose Click spikes or its users to any harm or liability of any type. Click spikes has a “zero-tolerance” policy towards unauthorized marketing and spam: Merchant may not use the Social Media Areas or Click spikes Services generally to send commercial or other messages to any third party if those messages are not solicited, authorized or welcomed by the third party, and in Merchant’s use of Click spikes Services, Merchant must comply with all applicable laws, including laws that apply in any jurisdiction to spam and marketing practices, and with any applicable marketing association guidelines on ethical marketing practices. Any use of the Social Media Areas or other portions of Click spikes Services in violation of the foregoing violates the Terms and may result in, among other things, termination or suspension of Merchant’s rights to use the Social Media Areas and/or Click spikes Services. 

12. Providing a Reliable and Secure Service 

We put a great deal of effort into ensuring that Click spikes Services operate on a reliable basis and where applicable provide a secure environment for Merchant’s data. We use what we believe to be “best-of-class” infrastructure and hosting services and security technologies and services that we believe provide Merchant with a secure and safe environment. However, no system is perfectly secure or reliable, the Internet, hardware, power sources, and local servers and associated technology are inherently unreliable at times and can be an insecure medium, and the reliability of hosting services, internet intermediaries, Merchant’s internet service provider, servers, databases, access to or use of financial or business records, and other service providers cannot be assured or assumed. When Merchant uses  Click spikes Services, Merchant acknowledges Merchant understands and accepts these risks, and Merchant accepts sole responsibility for choosing to use a technology that does not provide perfect security or reliability. 

13. No Responsibility for Third-Party Material

 Click spikes Services may contain links or references to third-party websites (“Third-Party Sites”) and third-party content (“Third-Party Content”)
as a service to those interested in this information, including third party suppliers, payment processors and other payment intermediaries that Merchant may use in connection with Merchant’s use of Click spikes  Services. Merchant uses links to Third-Party Sites and any Third-Party Content or service provided there, at Merchant’s own risk. Click spikes  makes no claim or representation regarding Third-Party Content or Third-Party Sites, and provides them or links to them only as a convenience. Inclusion in Click spikes Services of a link to a Third-Party Site or Third-Party Content does not imply  Click spikes ’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. Click spikes accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content, Third-Party Sites, or websites linking to Click spikes Services. When Merchant leaves Click spikes Services, our Terms and policies no longer govern. Merchant should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site, and should make whatever investigation Merchant feels necessary or appropriate before proceeding with any transaction with any third party. The provider of any third-party service is solely responsible for that third-party service, the content therein, any warranties to the extent that such warranties have not been disclaimed, any training, support or maintenance for the third-party services, and any claims that Merchant or any other party may have relating to that third-party services or Merchant’s use of that third-party service. Merchant acknowledges that: (i) Merchant is purchasing the license to each third-party service from the provider of that third-party service; (ii) Click spikes is not acting as agent for the provider in providing each such third-party services to Merchant; (iii) Click spikes is not a party to the license between Merchant and the provider with respect to that third-party services; and (iv) Click spikes is not responsible for that third-party services, the content therein, or any warranties or claims that Merchant or any other party may have relating to that third-party services or Merchant’s use of that third-party services. Merchant acknowledges and agrees that Click spikes is a third party beneficiary of the End User License Agreement for each third-party services, and that, upon Merchant’s acceptance of the terms and conditions of the license to any such third-party services, Click spikes will have the right (and will be deemed to have accepted the right) to enforce such license against Merchant as a third party beneficiary thereof. 

14. Advertisements and Promotions

 Click spikes may run advertisements and promotions of third parties on  Click spikes Services. Merchant’s business dealings or correspondence with, or participation in promotions of, advertisers other than Click spikes , and any terms, conditions, warranties or representations associated with such dealings, are solely between Merchant and such third party. Click spikes is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on Click spikes  Services. 

15. Warranty Disclaimer 

 Click spikes Services and any third-party services are provided to Merchant on an “as is” basis without any warranties from Click spikes of any kind, either express or implied. Click spikes expressly disclaims all other warranties, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Click spikes does not represent or warrant that Click spikes Services are accurate, complete, reliable, current or error-free. Click spikes Services and access to data may be interrupted or unavailable at any time and Merchant accepts all risks associated with such unavailability or interruption. Merchant should establish other systems to ensure business continuity and to ensure the accuracy or reliability or any business, financial or accounting data generated by the use of Click spikes Services or otherwise stored or accessed through Click spikes Services. While Click spikes attempts to makeMerchant’s access to and use of Click spikes Services safe, Click spikes  does not represent or warrant that the Click spikes Content, the third-party services or Click spikes Services are free of viruses or other harmful components or will be available without interruption or error.

16. Limitation of Liability; Indemnity 

Merchant waives and shall not assert any claims or allegations of any nature whatsoever against  Click spikes , its sponsors, suppliers, contractors, advertisers, vendors or other partners, licensors, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Released Parties”) arising out of or in any way relating to Merchant’s use of Click spikes  Services or any third-party services, including, without limitation, any claims or allegations relating to infringement of proprietary rights, or allegations that any Released Party has or should indemnify, defend or hold harmless Merchant or any third party from any claim or allegation arising from Merchant’s use or other exploitation of any third-party services or Click spikes Services. Without restricting the generality of the foregoing, Click spikes has no liability whatsoever with respect to any Customer’s use of services provided by Merchant. Merchant is solely responsible and liable in all respects to the Customer with regards to fulfilling any reservations or waitlist requests with Merchant made through Click spikes Services, or any online orders placed with Merchant or any Merchant gift cards purchased through Gift Card Services, and Merchant shall indemnify, defend or hold harmless the Released Parties from any claim or allegation of a Customer arising from or relating to any such reservations or waitlist requests with Merchant, any such online orders placed with Merchant or such Merchant gift cards. In addition, Merchant is solely responsible for establishing policies and practices regarding payments (including prepayments) for reservations, waitlist requests and online orders or fees or costs incurred by Customers who fail to utilize a booked reservation or waitlist request. It shall be Merchant’s responsibility to prominently display and disclose any and all such policies and practices to the Customer. Merchant uses Click spikes Services completely at Merchant’s own risk. Merchant agrees that this is fair and reasonable. 

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER Click spikes NOR ANY OTHER RELEASED PARTY SHALL BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF ACCESS TO OR USE OF DATA OR LOSS OF GOODWILL, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE ANY OR ALL Click spikes SERVICES OR ANY THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM MERCHANT’S RELIANCE ON Click spikes SERVICES OR ANY THIRD-PARTY SERVICES OR OTHER INFORMATION OBTAINED FROM Click spikes OR ANY OTHER RELEASED PARTY OR ACCESSIBLE VIA Click spikes SERVICES OR ANY THIRD-PARTY SERVICE, OR THAT RESULT FROM MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DATA OR EMAIL, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO Click spikes OR ANY OTHER RELEASED PARTY’S RECORDS, PROGRAMS OR SERVICES. In no event shall the aggregate liability of  Click spikes , whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of Click spikes Services or any third-party services exceed any compensation paid by Merchant for access to or use of Click spikes  Services for the three (3) months immediately prior to the date of any claim. Merchant shall defend, indemnify and hold harmless Click spikes  and the other Released Parties from any loss, damages, liabilities, costs, expenses, claims and proceedings arising out of Merchant’s use of Click spikes Services or any third-party services and from the use  Click spikes Services or any third-party services by any person to whom Merchant gives access to Merchant account (including as staff), including any claims made by any person that any of Merchant’s User Content infringes the rights, including the intellectual property rights, of any third party. Some jurisdictions limit the scope of limitations of liability in which event Click spikes claims the full scope of limitation of liability as may be allowed in any applicable jurisdiction. 

17. Communications 

Notices that we give Merchant (other than notice of amendment of the Terms, which is discussed in the introduction of the Terms) may be provided in any number of ways, depending on the circumstances. For example, we may email Merchant or telephone Merchant at the contact information Merchant provided at time Merchant entered into the  Click spikes Services Agreement (as same may have been updated by Merchant from time to time). Or we may post a notice to Users in the dashboard area of Merchant’s account on the Site, or post the notice elsewhere on the Site. When we post notices on the Site, we post them in the area of the Site suitable to the notice. It is Merchant’s responsibility to periodically review the Site for notices. Merchant agrees to keep all Registration Data current and up to date. Subject to the Privacy Notice, if Merchant sends Click spikes or posts on Social Media Areas any information, ideas, inventions, concepts, techniques or know-how (“User Submissions”), for any purpose, including the developing, manufacturing and/or marketing or products or services incorporating such information, Merchant acknowledges that  Click spikes can use without limitation the User Submissions without acknowledgment or compensation to Merchant, and Merchant waives any claim of ownership or compensation or other rights Merchant may have in relation to the User Submissions. We actively review User Submissions for new ideas. If Merchant wishes to preserve any interest Merchant might have in Merchant User Submissions, Merchant should not post them or send them to us.

18. Applicable Law and Venue 

Merchant and Click spikes both benefit from establishing a predictable legal environment in regard to Click spikes Services. Therefore, Merchant and Click spikes explicitly agree that all disputes, claims or other matters arising from or relating to Merchant’s use of Click spikes  Services or any third-party services shall be exclusively governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein and the courts sitting at Toronto, Ontario. The parties hereto waive any right to trial by jury in respect of any dispute arising from or related to the Click spikes Services Agreement. Except where prohibited by applicable law, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) involving Click spikes and arising out of or relating to (a) the Terms; (b) Click spikes Services or any associated third-party services; (c) oral or written statements, advertisements or promotions relating to Click spikes Services or any associated third-party services; or (d) the relationships that result from Click spikes Services or any associated third-party services (collectively, a “Claim”), will be
referred to and determined by individual arbitration by a single arbitrator (to the exclusion of the courts) sitting at Toronto, Canada in accordance with the Arbitrations Act of Ontario. Arbitration can be initiated by either party delivering to the other party a written notice of arbitration invoking this provision. The arbitrator’s authority is limited to claims between Merchant and us alone. Claims may not be joined or consolidated unless Merchant and we consent in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. The arbitrator’s decision will be final and binding. Each party will bear its own expenses under such arbitration, subject to the authority of the arbitrator to make an award of legal costs in accordance with the arbitrator’s authority. Except where prohibited by applicable law, Merchant waives any right Merchant may have to commence or participate in any class action against Click spikes related to any Claim and, where applicable, Merchant also agrees to opt out of any class proceedings against  Click spikes . Without limiting the foregoing, Merchant and Click spikes will not have the right to participate in a representative capacity or as a member of any class pertaining to any Claim or other matter related to the Click spikes Services Agreement. If Merchant has a Claim, Merchant should give written notice of arbitration by registered mail to  Click spikes ’s head office. If Click spikes has a Claim, it will give Merchant notice of arbitration at Merchant’s address provided in Merchant’s Registration Data. Arbitration will be conducted by one arbitrator pursuant to the commercial arbitration laws and rules under Arbitrations Act of Ontario in effect on the date of the notice in the Province of Ontario. To the extent arbitration as described above is prohibited by applicable law, Merchant agrees that all Claims shall be heard and resolved in a court of competent subject matter jurisdiction located in Toronto, Ontario. Merchant consents to the personal jurisdiction of such courts over Merchant, stipulates to the fairness and convenience of proceeding in such courts and submits to their exclusive jurisdiction, and covenants not to assert any objection to proceeding in such courts. 

Notwithstanding the foregoing, Click spikes shall be entitled, at its election, to apply to a court of competent jurisdiction: (i) for interim or permanent injunctive relief, a mandatory order, restraining order, or other like relief to restrain an actual or threatened breach of the  Click spikes Services Agreement and  Click spikes ’s rights under it by any party and specifically but not limited to protection of the intellectual property, information technology, brand, trademarks, and other proprietary material of Click spikes or its suppliers or licensors; and (ii) to collect any outstanding amounts that Merchant owes to Click spikes .With respect to Merchant’s use of Click spikes Services Merchant, Merchant is responsible for compliance with all local laws applicable to Merchant and Merchant’s use of Click spikes Services and Merchant agrees to indemnify Click spikes and the other Released Parties for Merchant’s failure to comply with any such laws. 

19. Term and Termination/Modification of License and Site Offerings 

The term of the Click spikes Services Agreement shall commence on the Quote Created Date and shall continue for such number of months following the Effective Date as is specified in the Sales Quote beside the heading “Initial Term” (the “Initial Term”). Upon expiration of the Initial Term and unless otherwise stated in the Sales Quote, the term of the Click spikes Services Agreement will automatically renew for a period equivalent to the period of the Initial Term unless terminated by Merchant or Click spikes by delivery of written notice to the other party at least thirty (30) days prior to the end of the then current term. Unless otherwise provided, Click spikes Services and access to Content are purchased as subscriptions.

Except as otherwise expressly set forth herein, Merchant may not terminate this Agreement prior to the expiration of the then current term. Notwithstanding any provision of the Terms, Click spikes reserves the right, without notice and in its sole discretion, without any liability to Merchant to (a) terminate Merchant’s license to use Click spikes Services, or any portion thereof (including any use of any third-party services) and the rights of any third party authorized by Merchant to access Merchant’s Click spikes account and User Content through Click spikes Services; (b) block or prevent Merchant’s future access to and use of all or any portion of Click spikes Services or Content (including any use of any third-party services) and the rights of any third party to which Merchant has granted access to Merchant’s  Click spikes account and User Content through the Click spikes Services; (c) change, suspend or discontinue any aspect of Click spikes Services or Content; and (d) impose limits on Click spikes Services or Content. Merchant’s sole remedy in such circumstances shall be limited to and not exceed the return of the pro rata amount of any pre-paid fees applicable to the balance of the term of any then current subscription period.  

When Merchant’s Click spikes account is terminated, Merchant’s User Content will, shortly thereafter, cease to appear on Click spikes Services, except for User Content submitted to Social Media Areas, which may remain on the Social Media Areas after termination. Click spikes may also retain an archival copy of Merchant’s User Content after termination, and Merchant hereby grants us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for our internal business purposes. If the Click spikes Services Agreement expires or terminates for any reason, Sections 4, 10-20, any representation or warranty Merchant makes in the Terms, and any other term of the Terms that by its nature is ongoing, shall survive indefinitely. 

20. Default

In the event that Merchant defaults under any obligations owed to  Click spikes under the Merchant’s Click spikes Services Agreement, in addition to any and all other rights and remedies which have in law or in equity, Click spikes may terminate the Merchant’s Click spikes Services Agreement, in which event, (i) if Merchant was provided with an Incentive (as disclosed in the Merchant’s Sales Quote), Merchant shall be liable to repay, and shall forthwith repay to  Click spikes , the entire amount of the Incentive; and (ii) Merchant shall be liable to pay, and shall forthwith pay to  Click spikes , the entire amount of any software license fees, hardware fees or payments and other amounts which would have been payable by Merchant to Click spikes during the balance of the then-current term of the Merchant’s Click spikes Services Agreement, had the said agreement not been terminated. 

In addition to the foregoing, in the event that Merchant defaults under any obligations owed to Click spikes under the Merchant’s  Click spikes Services Agreement, it is expressly agreed that (a) if Merchant is a party to an HPP Agreement, throughout the term of the HPP Agreement, Click spikes shall maintain the right to remotely disable any iPads which form part of the subject matter of the HPP Agreement; and (b) if the default occurs during the Initial Term and the Merchant was provided an Incentive for hardware (as disclosed in the Merchant’s Sales Quote), Click spikes shall maintain the right to remotely disable any iPads which form part of the subject matter of the Merchant Services Agreement. 

21. Miscellaneous 

If any provision of the Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. Click spikes may assign any or all of its rights hereunder to any party without Merchant’s consent. Merchant is not permitted to assign any of Merchant’s rights or obligations hereunder without the prior written consent of  Click spikes , and any such attempted assignment will be void and unenforceable. The Click spikes  Services Agreement constitutes the entire agreement between Merchant and Click spikes regarding Merchant’s use of Click spikes Services or any associated third-party services, and supersedes all prior or contemporaneous communications whether electronic, oral or written between Merchant and Click spikes regarding Merchant’s use of them. Merchant has reviewed, understood and accepted the terms and conditions set forth in the Click spikes Services Agreement and has either consulted with legal counsel prior to its execution or has knowingly forgone its right to consult with legal counsel prior to such execution. The parties confirm that it is their wish that the Terms, as well as any other documents relating to these Terms, including notices, have been and shall be drawn up in the English language only. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais.