Terms and Conditions

commonsku Inc. (“commonsku”/“we”/“our”) owns and operates the website at https://commonsku.com/ and its subdomains (collectively, “Website”) and the commonsku cloud-based workflow software platform (the “Platform”), the commonsku mobile application (“App”) and related services, features and functionality, as described on the Website and herein (collectively the “Services”). These terms and conditions (“Terms”), together with any executed Order incorporating these terms and conditions by reference, set out the terms on which commonsku customers who have purchased access to the Platform (“Customer”, “you”, “your”) can access and use the Services (the “Agreement”). 

By executing an Order or clicking a box indicating acceptance of an Order (as defined in Section 2.1 below), or by accessing and using the Services, you agree to and accept this Agreement as legally binding on you. The “Effective Date” of this Agreement shall be the earlier of: (i) your initial access to and use of the Services; and (ii) the effective date of your first Order. If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to this Agreement, in which case the terms “Customer”, “you” or “your” shall refer to such entity. If you do not have such authority, or if you do not agree with this Agreement, you may not use or access the Services and should not accept this Agreement. 

We may revise this Agreement at any time and at our sole discretion. Any non-material change to this Agreement will become effective on the date the change is posted. Any material changes to this Agreement will be effective: (i) immediately if you are a new Customer; and (ii) if you are an existing Customer, upon the earlier of: (a) thirty (30) days after notice is provided of such changes, which notice may be provided by updating the “Last Modified” date above, through email or through the Services; and (b) your acceptance of the updated Agreement.

Please note that if you are based in the United States, this Agreement will be between you and commonsku US Inc., located in the United States, and if you are based in Canada or anywhere else outside of the United States, this Agreement will be between you and commonsku Inc., located in Canada.

¹The Services.

1.1

Overview. The Services are intended for Customers who are distributors (“Distributors”) and/or suppliers (“Suppliers”) engaged in the promotional products industry. The Services allow Customers to enhance their Distributor-Supplier relationships and help them manage relationships with their Clients (as defined in Section 1.5 below). The Services provided to Customer may differ depending on whether Customer is a Distributor or a Supplier.

1.2

Provision. commonsku will make the Services available to Customer during the Term (as defined in Section 6.1 below) for the Customer’s internal business purposes pursuant to this Agreement and the applicable Order(s). commonsku will provide standard support as part of the Services to Customer at no additional charge and use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond our reasonable control. We will provide the Services in accordance with laws applicable to our provision of the Services to Customers generally (i.e., without regard for your particular use of the Services), and subject to your use of the Services in accordance with the terms of this Agreement and all applicable laws.

1.3

Usage Limits. The Services and commonsku Content (as defined in Section 7.1 below) may be subject to usage limits, as specified in the Order or at the time of Services onboarding (as applicable). Surpassing any usage limits may result in additional Fees (as defined in Section 5.1 below).

1.4

Users. Customer’s right of access to the Services in Section 1.2 above includes the right to provide users within Customer’s enterprise for whom Customer has purchased Platform access (“Authorized Users”) with access to and use of the Services. Authorized Users may be required to register a services account or may be provided account credentials by Customer or commonsku (as applicable). Customer shall be responsible for any Fees incurred by Authorized Users and shall cause each Authorized User to comply with this Agreement as if Authorized User were a party hereto. Any act or omission relating to this Agreement by an Authorized User shall be deemed an act or omission of the applicable Customer.

1.5

Clients. Customer may make certain Services functionality available to their clients (“Clients”) at the Customer’s discretion, provided Customer’s payment of applicable Fees. To grant a Client access to certain Services functionality, Customer must provide us the Client’s email address to which we will email a Client access code. Customer shall be responsible for any Fees incurred by Clients and shall cause each Client to comply with this Agreement as if they were a party hereto. Any act or omission relating to this Agreement by a Client shall be deemed an act or omission of the applicable Customer.

1.6

Additional Terms. Your use of certain Services functionality or other commonsku products and services may be subject to additional terms, which will be made available at the time of access or purchase of the applicable feature (“Additional Terms”). Any Additional Terms entered into between you and commonsku shall take precedence over conflicting provisions in this Agreement unless stated otherwise in the Additional Terms.

1.7

Privacy. Information about our collection, use and disclosure of personal information can be found in the commonsku Privacy Notice (“Privacy Notice”). By using the Services, you consent to our collection, use, and disclosure of personal information as outlined in the Privacy Notice.

1.8

Mobile Services. Certain parts of the Services can be accessed via a mobile device, including, without limitation, the ability to access certain features and content through the App (“Mobile Services”). If you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. With respect to the access through or download of the App from the Apple App Store, Google Play, or any other third-party marketplace (each an “App Store”), you will only use the App: (i) on the branded device of the applicable App Store owner, if required by the applicable App Store’s terms; and (ii) as permitted by any App usage rules set forth in the applicable App Store’s terms. You acknowledge and agree that (a) this Agreement is concluded between you and commonsku; (b) the App Store owner has no obligation or liability to you with respect to the Services or this Agreement; and (c) the App Store owner is a third-party beneficiary to this Agreement as it relates to the App.

²Ordering Services and Onboarding.

2.1

Orders. Customer may purchase paid Services via an ordering document entered into by Customer and commonsku that specifies the Services ordered and any related commercial terms. Each ordering document which is executed or otherwise accepted by both parties (each an “Order”) shall form part of the Agreement between Customer and commonsku, which includes these Terms. In the event of any conflict between this Agreement and any Order, the terms of the Order shall prevail but solely to the extent of the conflict.

2.2

Registration. To access and use the Services, Customer will need to complete the account registration process and provide us with current, complete and accurate registration and billing information as required or requested by commonsku ("Registration Data"). You agree that you will maintain and update your Registration Data as necessary to keep such information current, complete and accurate and maintain the confidentiality of your Platform account credentials.

2.3

Accounts. You will be responsible for all activities that occur under your Services account. Authorized User and Client access may be managed via the Services account. Unless expressly permitted under this Agreement, you may not assign or transfer your Services account to any other person or entity. You must immediately notify us of any unauthorized use of your Services account or if your Services account is compromised. In the event of a dispute regarding the Services account owner, we reserve the right to request documentation to determine Services account ownership. If we are unable to reasonably determine the rightful Services account owner, we reserve the right to temporarily disable a Services account until a resolution has been determined.

³Use of Services.

3.1

Customer Responsibilities. You shall and shall ensure that your Authorized Users: (a) abide by all applicable laws and regulations in connection with your use of the Services; (b) immediately notify us of any known or suspected breach of security (including unauthorized access to your account or use of Authorized User logins); (c) report to commonsku immediately and use reasonable efforts to stop immediately any copying or distribution of the Services or commonsku Content (as defined in Section 7.1 below) that is known or suspected by you; and (d) not impersonate another party or provide false identity information to gain access to or use the Services.

3.2

Usage Restrictions. You shall not and shall not permit anyone to: (a) sell, resell, license, sublicense, distribute, rent or lease any Services or commonsku Content, or include any Services or commonsku Content in a service bureau or outsourcing offering; (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (c) use the Services to store or transmit malicious code, files, scripts, agents or programs intended to do harm; (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (e) attempt to gain unauthorized access to the Services or its related systems or networks; (f) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, or use the Services to access, copy or use any of commonsku’s intellectual property except as permitted under this Agreement; (g) modify, copy, or create derivative works of the Services or any part, feature, function or user interface thereof; (h) frame or mirror any part of the Services or commonsku Content, except as expressly permitted herein or on the Website; or (i) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Services or access the Services in order to: (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Services, (3) copy any ideas, features, functions or graphics of the Services, or (4) determine whether the Services are within the scope of any patent. For clarity, you shall not modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the App.

3.3

Compliance. commonsku may use the Services to confirm the number of Authorized Users and Clients accessing the Services and Customer’s compliance with the terms of the Agreement. In addition, commonsku may access, read, preserve, and disclose information as we believe necessary to (i) comply with any law or regulation, (ii) enforce this Agreement, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to support requests, or (v) protect the rights, property or safety of our users and the public.

⁴Your Content.

4.1

Customer Content. While using the Services, Customers (and their Authorized Users and Clients) can submit, post, display, or otherwise make information or data available via the Services, which can be in the form of text, video, images or other media (“Customer Content”). For certainty, Outputs (as defined in Section 7.3 below) constitute Customer Content. As between you and commonsku, you will own and retain ownership of any Customer Content which you provide or process through or store on the Services. By submitting, posting, displaying or generating Customer Content via the Services, you represent and warrant that you have the right to allow us to use and process Customer Content as set out in this Agreement and that use of Customer Content as contemplated in this Agreement will not breach the rights of any third party. For clarity, you shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content; and (b) have sole responsibility for obtaining all consents and third-party licenses, and providing all notices in accordance with applicable laws to ensure Customer Content can be shared with and used by commonsku under this Agreement. commonsku will maintain appropriate administrative, physical, and technical safeguards to protect the security, confidentiality and integrity of Customer Content. The terms of the commonsku Data Processing Addendum (“DPA”) are hereby incorporated by reference and shall apply to the extent Customer Content includes Customer Personal Data, as the term is defined in the DPA.

4.2

Customer Content Restrictions. You agree that you will not upload or make available any Customer Content that: (a) is unlawful, harmful, or objectionable; (b) you do not have a right to make available; (c) infringes any intellectual property or other proprietary rights of any party (including privacy rights); (d) is or contains unsolicited or unauthorized solicitations, "junk mail," "spam," "chain letters," or "pyramid schemes"; (e) contains harmful software or material; or (f) contains any misrepresentations. commonsku does not pre-screen any Customer Content but will have the right (but not the obligation) in its sole discretion to refuse or to remove any Customer Content from the Services.

4.3

Customer Content License. By submitting, posting, displaying or generating Customer Content through the Services, you grant us (and our agents) a non-exclusive, royalty-free license (with the right to sublicense) to use, copy, modify, transmit, display and distribute Customer Content as needed to provide and improve the Services and meet our obligations to you under this Agreement. This license includes the rights for commonsku to use and copy Customer Content for the purpose of (i) improving commonsku’s proprietary AI Services; and (ii) creating aggregated and anonymized statistical analytics regarding Services parameters and characteristics (“Aggregated Statistics”).

4.4

Distributor Data. If you are a Distributor and choose to do business with a Supplier via the Services (i.e. you, the Distributor, place a Client’s order for a Supplier’s product via the Services), the following information (some of which may constitute Customer Content or personal information of the Client) may be shared with the applicable Supplier: the profile information of the Distributor, product sku, industry of the recipient of the quote or purchase order, event type, product shipping address, and if a purchase order was generated. You shall have sole responsibility for obtaining all consents and third-party licenses, and providing all notices in accordance with applicable laws to ensure such information can be shared with the Supplier as set out in this Section 4.

⁵Fees.

5.1

General. The applicable fees governing Customer’s use of the Services (“Fees”) shall be made available to Customer at the time of purchase or set out on the Order (as applicable). Depending on the number of Authorized Users and/or Clients and the Services module selected by Customer, Customer may be required to pay recurring subscription Fees or to pay Fees as they are incurred depending on the Customer’s usage of the Services or depending on orders submitted to a Supplier via the Services or a Third-Party Service integrated with the Services (as applicable). Customer must maintain accurate payment information and notify commonsku of any changes to billing information. Customer must provide a valid payment method within ten (10) days of a missed Fee payment to continue accessing the Services without interruption.

5.2

Billing. Fees will be billed on the first day of each Services monthly or annual billing cycle, as selected by Customer at the time of Services onboarding, until the end of the Term. Billing of recurring subscription Fees will be subject to automatic renewals, as set out in Section 6 below. Customer may cancel their Term renewal per Section 6 below. If Customer’s modification to the Services module or number of Authorized Users and/or Clients results in changes to Fees, the new Fees will be effective and billed at the time the change is made.

5.3

Processing. Fees shall be processed via a Third-Party Service. If a Customer’s payment method is invalid or outdated or otherwise not able to be charged Fees on the billing date, we may re-process the Fee payment using the same payment method. If incurred and outstanding Fees are not paid for more than ten (10) days, in addition to other remedies, we may (i) suspend and/or terminate your access to the Services without notice or liability to you or a third party, and/or (ii) change Customer billing requirements moving forward.

5.4

Late Fees. Any incurred Fees not received from Customer by their due date may accrue (except with respect to Fees then under reasonable and good faith dispute), at our discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

5.5

Taxes. All Fees are exclusive of any taxes, duties or levies assessed by applicable governmental authorities (“Taxes”). All Taxes (exclusive of any Taxes based upon commonsku’s net income) shall be assumed by and paid for by Customer, not commonsku.

⁶Term and Termination.

6.1

Term. This Agreement shall commence on the date it is accepted and will continue for an initial term of 12 months or the time period set out on the applicable Order (“Initial Term”). On the date the Initial Term expires, this Agreement shall automatically renew for a successive renewal Term(s) equal in duration to the Initial Term (each a “Renewal”) at commonsku’s then-current Fees unless Customer written notice of non-renewal to commonsku at least thirty (30) days prior to the end of the Initial Term or the Renewal then in-effect. Together, the Initial Term and any Renewals constitute the “Term”.

6.2

Termination. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of the other party’s material breach of this Agreement if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. For clarity, except for a party’s right of termination for material breach or Customer’s notice of non-renewal via Section 6.1, no early termination of this Agreement is permitted by Customer.

6.3

Refunds. Only in the event of early termination by Customer for our uncured material breach, will a pro-rata portion of any pre-paid unapplied Fees be refunded to Customer by us. In case of any attempted early termination not permitted by this Agreement or if commonsku terminates due to Customer’s uncured material breach, Customer must pay the remaining balance of any Fees outstanding and incurred on and until the termination date and no refunds will be issued for pre-paid Fees.

6.4

Suspension of Services. Notwithstanding anything in the Agreement to the contrary, commonsku may, at its sole discretion, suspend access to the Services upon the occurrence of any of the following: (i) degradation or instability of any part of the Services, in which case we will endeavor to provide prior written notice to Customer; (ii) if outstanding Fees are not paid for more than ten (10) days; (iii) an emergency, suspected fraud, enforcement by external authorities or regulatory requirement without notice or on provision of at least ten (10) days’ prior written notice to Customer where practicable; and (iv) Customer’s failure to abide by the Agreement. commonsku will have no responsibility or liability for any losses, lost profits, potential lost business opportunities or other damages that might arise in relation to commonsku’s suspension of access to the Services.

6.5

Effect of Termination. On termination, Customer and their Authorized Users and Clients will no longer have access to the Services or any Customer Content. Following termination, subject to any retention measures in the Privacy Notice and/or the DPA, Customer Content may be deleted from commonsku’s systems. commonsku shall not be liable to Customer or any third party for any termination of your access to Services or for the removal of Customer Content from the Services. On termination, except as expressly set forth in this Agreement, all licenses and rights granted to you shall terminate. Sections 1.4-1.7, 2-5, 6.3-6.5, 7.1, 7.3-7.5 and 8-13 shall survive termination.

⁷Intellectual Property.

7.1

Reservation of Rights. commonsku and its licensors own all right, title and interest, including all related intellectual property rights, in and to the Services (including to the Website, App and Platform) and any content and/or documentation pertaining to the Services which is made available via the Website or Platform (“commonsku Content”), which are protected from unauthorized copying and dissemination by intellectual property laws. commonsku reserves all rights not expressly granted to you under this Agreement. Nothing in this Agreement gives you a right or license to use the commonsku names, trademarks, logos, domain names, and other distinctive brand features without our prior written consent, and all goodwill generated from the use of the foregoing will inure to our exclusive benefit. commonsku shall own all Aggregated Statistics.

7.2

License. Subject to this Agreement, the terms of this Agreement during the Term, commonsku grants you a non-transferable, non-exclusive, revocable, limited license to (i) use and access the Website and commonsku Content for your internal business purposes in connection with use of the Services; and (ii) use and reproduce one copy of the App on a mobile device that you own or control for your internal business purposes and in connection with use of the Services. The App, Website and commonsku Content are licensed to you and not sold.

7.3

Artificial Intelligence. Certain features or functionality of the Services may integrate with or rely on artificial intelligence technologies powered by machine learning (“AI Services”), including AI Services proprietary to commonsku and AI Services provided by third parties that are not owned or controlled by commonsku. Availability of AI Services and the ability to generate Outputs (defined below) may vary depending on whether you are a Distributor or Supplier. Customers should evaluate the accuracy of any output generated from Customer Content inputted into or combined with parts of the Services powered by AI Services (each an “Output”). Customer shall be solely responsible for all decisions made, advice given, actions taken, and failures to take action based on use of or reliance on any data, recommendations or other output generated through use of the AI Services, including without limitation, Outputs. commonsku does not represent or warrant that any data, recommendations or other output generated through use of the AI Services, including without limitation, Outputs generated using the AI Services will be accurate or applicable for Customer’s desired use or will be unique to Customer.

7.4

Feedback. If you give us any suggestions or feedback about the Services ("Feedback"), we may use such Feedback to improve or modify the Services or to create, improve or modify commonsku’s other products or services moving forward (collectively, "commonsku Offerings"). You agree that: (a) we are not subject to any confidentiality obligations in respect to the Feedback, (b) you have the right to disclose the Feedback to commonsku, (c) commonsku (including all of its successors and assigns and any successors and assigns of any of the commonsku Offerings) may freely commercialize the Feedback in any commonsku Offerings, and (d) you are not entitled to receive any compensation for the Feedback.

7.5

Publicity. commonsku may use Customer's name and logo to identify Customer as a user of the Services, including on commonsku’s public website, in accordance with Customer’s standard guidelines governing use of its logos (if any are provided by Customer to commonsku). commonsku agrees to promptly stop using the Customer’s name and logo in any new marketing or publicity initiatives upon written request.

⁸Third Parties.

8.1

Third Party Interactions. During use of the Services, you may correspond with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Services. Any such activity, any terms or conditions associated with such activity, and any exchange of data between you and such third party are solely between you and the applicable third party. commonsku shall have no liability for any such correspondence, purchase or promotion between you and any such third party. commonsku does not warrant, support or endorse any third-party sites, products or services that are available via Services and in no event shall commonsku be responsible for any content, products, or other materials on or available from any third party.

8.2

Third-Party Services. Some aspects of the Services may integrate with or rely on third-party platforms and services that are not owned or controlled by commonsku (“Third-Party Services”). Your use and/or enabling of any such Third-Party Services will be subject to any terms which govern and/or apply to such Third-Party Service. If you choose to use or enable a Third-Party Service, you understand and acknowledge the Third-Party Service may access Customer Content as appropriate for the interoperation of that Third-Party Service with the Services. commonsku does not guarantee the continued availability of any Third-Party Services and may cease providing or integrating with them without entitling Customer to any refund, credit, or other compensation.

⁹Confidential Information.

9.1

Definition and Use. “Confidential Information” means information of a party (“Disclosing Party”) that the other party (“Receiving Party”) receives in connection with the Services, which based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential to the Disclosing Party. A Receiving Party shall: (a) limit access and use of Disclosing Party’s Confidential Information to those of Receiving Party’s employees, agents, and subcontractors that require such access and use in connection with such party’s obligations hereunder, who each treat such Confidential Information as provided in this Section 9, and who are each subject to obligations of confidentiality to such party that are at least as stringent as those contained in this Section 9; (b) not disclose Disclosing Party’s Confidential Information to third parties (except those partners or third party service providers used by us to provide some or all elements of the Services and who are bound by duties of confidentiality), unless authorized under this Section 9; (c) protect the Disclosing Party’s Confidential Information as it protects its own Confidential Information, but in any event with not less than a reasonable degree of care; and (d) not use the Disclosing Party’s Confidential Information for any purpose except as required to perform its obligations hereunder or as otherwise specifically permitted hereunder.

9.2

Exceptions. Nothing in this Section 9 shall prevent a Receiving Party from disclosing Confidential Information to a third party to the extent that such Confidential Information is: (i) previously known to the Receiving Party prior to disclosure by the Disclosing Party, without any obligation of confidentiality; (ii) publicly known or becomes publicly known through no breach of this Agreement by the Receiving Party; (iii) rightfully received from a third party under no confidentiality obligation with respect to the Confidential Information; or (iv) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. In addition, Confidential Information may be disclosed to governments and their agencies under lawful order or judicial order. If commonsku receives a request or order to release your Confidential Information, we can comply with the same without your consent. We may notify you of this matter to the extent not prohibited by law or the applicable order or unless we deem, in our sole discretion, that notification could be prejudicial and/or might create or further cause injury or harm to persons or property.

¹⁰Disclaimers, Representations & Warranties.

10.1

Representations and Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. commonsku represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. You represent and warrant that you have not provided any false information (including Registration Data) to gain access to the Services and that you have all rights and licenses necessary to perform your obligations hereunder and grant the licenses contemplated hereunder.

10.2

DISCLAIMER. EXCEPT AS EXPLICITLY SET OUT IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AND COMMONSKU GIVES NO REPRESENTATION, WARRANTY OR CONDITION ABOUT THE RELIABILITY, QUALITY, SUITABILITY OR AVAILABILITY OF THE SERVICES, WEBSITE, PLATFORM OR COMMONSKU CONTENT. THE SERVICES, WEBSITE, PLATFORM AND COMMONSKU CONTENT ARE PROVIDED “AS-IS”. COMMONSKU DOES NOT REPRESENT OR WARRANT OR PROVIDE ANY CONDITION THAT (A) USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER OR USERS, (C) ANY CONTENT MADE AVAILABLE TO YOU VIA THE SERVICES WILL BE ACCURATE OR RELIABLE, (D) ALL ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABLE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, ARE DISCLAIMED TO THE EXTENT PERMITTED BY LAW.

10.3

Relationships via the Services. commonsku is not responsible for any obligations Customers may have to their Clients or obligations Suppliers may have to Distributors and vice versa. commonsku is not a party to the relationship between a Customer and a Client or between a Supplier and a Distributor. commonsku shall not, in any way, be liable to a Customer or Client or any other third party, arising, either directly or indirectly, from any arrangement between a Customer and a Client or between a Supplier and a Distributor.

10.4

Disputes. Notwithstanding anything in this Agreement to the contrary, Customers are solely responsible for their interactions with Clients or with other Distributors or Suppliers via the Services. commonsku will have no liability or responsibility with respect thereto. commonsku reserves the right, but has no obligation, to become involved in any way with disputes between you and a Client or other Distributors or Suppliers.

¹¹Indemnification.

11.1

Customer agrees to defend or settle at its own expense any and all suits, actions or claims brought against commonsku arising from Customer’s or any Authorized Users’ or Clients’ use of the Services, provided that Customer is notified promptly in writing of any claim, has the right to control such defense and at its request and expense, and is given authority and reasonable assistance by commonsku for such defense or settlement. commonsku shall have the right to defend any such claim at its own expense. Customer will pay any settlement amount or any damages, costs and expenses finally awarded in any such suit, action or claim, including legal fees on a full indemnity basis, and shall save harmless commonsku for any of the foregoing.

¹²Limitation of Liability.

12.1

EXCEPT FOR FRAUD, WILFUL MISCONDUCT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR OTHER ECONOMIC LOSS, OR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMMONSKU’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER TO COMMONSKU IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION SHALL APPLY REGARDLESS OF WHETHER ANY ACTION IS BROUGHT IN CONTRACT OR IN TORT, (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY), OR FUNDAMENTAL BREACH AND/OR FAILURE OF ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN AND SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

¹³General Terms.

13.1

Force Majeure. Neither party will be liable to the other party for any delay or failure to perform any non-payment obligation under this Agreement if the delay or failure is due to unforeseen events that occur after the Effective Date and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

13.2

Notices. Notices must be given by email, as follows: (i) if to commonsku, to the support contact email address shown on the Services or on the applicable Order, and (ii) if to the Customer, to the Customer’s email address provided in its Registration Data. A notice is deemed to have been given on the business day following its transmission.

13.3

Independent Contractors. The parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.

13.4

Assignment. Customer may not assign its rights or obligations under this Agreement without getting prior written permission from commonsku. commonsku may assign its rights or obligations under this Agreement to anyone at any time. This Agreement shall enure to the benefit of permitted assigns and successors. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns.

13.5

Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, the remaining provisions will not be affected and will be considered valid and enforceable.

13.6

Entire Agreement. This Agreement (which is comprised of these Terms, all Orders and any Additional Terms entered into by Customer), are the entire agreement between the parties relating to the Services and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Any term or condition stated in a Customer’s purchase order or in any other Customer order documentation (excluding Orders) is void.

13.7

Governing Law. This Agreement are governed by the laws of the Province of Ontario and the Federal laws of Canada applicable therein, excluding conflicts of laws rules. The courts of Toronto have exclusive jurisdiction over disputes. The parties agree that jurisdiction and venue is appropriate and they irrevocably attorn to the jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.

13.8

Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

13.9

Export Compliance. Customer acknowledges and agrees that the Services may be subject to export and import controls under the regulations of Canada, the United States and other countries. Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Services for any purposes prohibited by export laws and shall be responsible for procuring all required permissions for any subsequent export, import or use of the Services.

13.10

No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.

Questions?

If you have questions, concerns or if you would like more detailed information, please email info@commonsku.com and we would be happy to assist.

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