Coconut Terms of Service
By accepting the Coconut Order Form, or clicking on “I agree” (or a similar box or button) when you sign up for services with Coconut, or by using any Coconut service, you are agreeing to be bound by the following terms and conditions (“Coconut Terms of Service“).
As used in the Coconut Terms of Service, “we”, “us” and “Coconut” means Coconut Software Corporation, a Canadian corporation with offices located at 121 Research Drive, Suite 102 Saskatoon SK S7N 1K2 Canada, and “you”, “your” and “Customer” means the entity that has agreed to the terms of the Coconut Terms of Service. Coconut and Customer are each a “party”, collectively the “parties” to the Coconut Agreement.
Coconut provides a technology platform that enables Customers, including financial services providers, to securely manage their client-service activities. Coconut’s services allow Customers to manage client-service interactions, including scheduling, communications, administrative services and any modifications to such services by Coconut, as further described below and in an Order Form (“Services”).
You agree to access and use Services pursuant to, and in accordance with the Coconut Terms of Service and any Order Form (collectively, “Coconut Agreement”) which constitutes the entire agreement between the parties with respect to the Services and supersedes any prior verbal or written agreements with respect to the Services. You must read and accept all of the terms and conditions contained or incorporated into these Coconut Terms of Service, as well as Coconut’s Privacy Policy, any terms governing the use of any Coconut API, and the Coconut Data Processing Addendum, before you may use any Services.
You can review the current version of the Coconut Terms of Service at any time at https://www.coconutsoftware.com/terms-of-service/. Coconut reserves the right to update and change the Coconut Terms of Service by posting updates and changes to Coconut’s website without notice. You should access the Coconut Terms of Service from time to time to review updates or changes that may impact you, and if you do not accept the current version of the Coconut Terms of Services at any time you must immediately cease using the Services.
1. Definitions
The terms stated below have the following meanings:
“Administrative Console” means the Coconut web administrative console associated with your account.
“Affiliate” of an entity means an entity controlling, controlled by, or under common control with such entity. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
“Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
“Approved Rate Card” has the meaning set out in Section 6.2.
“Authorized Payment Method” means any valid payment method that you authorize Coconut to bill.
“Coconut Data Processing Addendum” means the data processing addendum available at https://www.coconutsoftware.com/dpa.
“Coconut Privacy Policy” means the privacy policy available at https://www.coconutsoftware.com/privacy-policy/
“Coconut IP” has the meaning set out in Section 2.6.
“Coconut Terms of Service” means the terms of service set out at https://www.coconutsoftware.com/terms-of-service.
“Coconut Service Level Agreement” means any service level agreement to which the Parties mutually-agree from time to time, in writing.
“Confidential Information” has the meaning set out in Section 11.1.
“Corrective Action Plan” has the meaning set out in Section 7.5.
“Customer Data” means any data, information, content, records, and files that Customer (or any of its Permitted Users) loads or enters into, transmits to, or makes available to the Services, including but not limited to Personal Information.
“Effective Date” means the earliest of (a) the effective date stated in the Order Form, (b) the date you click on “I agree” (or a similar box or button) when signing up for Services, or (c) the date you started using any Services.
“Fees” has the meaning set out in Section 9.
“Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity.
“Services” has the meaning set out in the recitals.
“Infraction Notice” has the meaning set out in Section 7.5.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Losses” has the meaning set out in Section 9.2.
“Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
“Order Form” means any order form related to Services and agreed to by you and by Coconut.
“Permitted User(s)” has the meaning set out in Section 2.
“Released Parties” has the meaning set out in Section 9.2.
“Suggestions” has the meaning set out in Section 14.9.
“Personal Information” means information about an identifiable individual or information that is subject to applicable privacy or data protection laws.
“Website” means any websites used by Coconut to provide the Services, including the website located at coconutcalendar.com.
2. Coconut Services
2.1 Services. Subject to your compliance with the terms of the Coconut Agreement, Coconut will make the Services available to you on the terms set out in the Coconut Terms of Use during the Term. Coconut shall provide the Services as selected and authorized by you in the Order Form or from your Administrative Console.
2.2 License. Coconut grants you a non-exclusive, limited, non-transferable, non-sublicensable license to use and access the Services, subject to the terms of the Coconut Agreement. You will not permit anyone to sub-license, sell, resell, lend, lease or distribute the Services or any Intellectual Property Rights, or make the Services available to any third-party, other than Permitted Users.
2.3 Registration & Use. To use the Services, you must register for a Coconut account. You agree to use only those login credentials authorized by Coconut. You agree not to use, exploit, or access the Services (a) in violation of any Applicable Law or Intellectual Property Right, or (b) in a manner that threatens the security, performance, or functionality of the Services. You will not modify the Services, or attempt to gain unauthorized access to the Services, or to any related system or network. In relation to your use of the Services, you agree not to create, collect, transmit, or use (x) any unlawful or tortious materials, (y) any Customer Data that violates Applicable Laws, Intellectual Property Rights, or the rights of any third party, (z) any data that contains any virus or malicious code.
2.4 Permitted Users. Coconut will issue administrator accounts (each, a “Customer Administrator Account”) that provide the capability to create user accounts (each, a “Customer User Account”). Customer User Accounts may be used only by individuals who are employees or contractors of Customer. Customer Administrator Accounts and Customer Users Accounts are collectively “Permitted Users”. Customer will not create Customer User Accounts in excess of the quantities in an Order Form. Customer will ensure that Permitted Users created by Customer only use Services through Customer User Accounts. You will authenticate all Permitted Users and you will not permit Customer User Accounts to be shared by multiple individuals. Where you provide a Customer User Account to a Permitted User that is not an employee of Customer, you will ensure that such Permitted User is bound by terms and conditions of use for the Service that are no less protective than those set forth in the Coconut Agreement. You will notify Coconut of any suspected unauthorized use of the Services.
2.5 Access. You agree not to gain unauthorized access to any Service, or to decompile, disassemble, or otherwise reverse engineer the Services. You agree not to work around, bypass, or circumvent any of the technical limitations of the Services. You will not use access to the Service to build a similar product or service to the Service, or to monitor the Services in any way (including availability, performance, or functionality). You may not perform any vulnerability, penetration or other security testing on the Services without Coconut’s prior written approval. Without limiting any right or remedy at law, equity, or under the Coconut Agreement, Coconut may immediately suspend your access to the Services at Coconut’s sole discretion if Coconut determines that you have breached this Agreement. Any suspension by Coconut under the Coconut Agreement will not relieve you from any payment obligation.
2.6 Capacity Limits. Coconut will monitor the number of Customer User Accounts created and used by Customer. Coconut may invoice Customer for any overage or unauthorized use where (a) you create Customer User Accounts in excess of the quantities authorized by an Order Form, (b) multiple users are found to be using services through singular Customer User Accounts, (c) users are found to be accessing Services via a Customer Administrator Account without authentication. You agree to pay any such invoiced amount within thirty (30) days of the invoice date without setoff or deduction as stated in Section 9.
2.7 Delivery & Subcontracting. We may make modifications to the Services. Coconut may engage third parties to assist in providing the Services. We will remain responsible for the performance of the Services by any subcontractors that we use in accordance with this Agreement.
2.8 Performance. You will be solely responsible for the accuracy, quality and integrity of Customer Data. If you do not complete any action, the Service may not function properly, or at all. Coconut will not be liable for any issue caused by Customer’s failure to complete any action for any update, and Coconut will not provide any credit or compensation to Customer for any such issue.
3. Intellectual Property Rights
3.1 Your IP. You own your Intellectual Property, and nothing in these Coconut Terms of Service grants any right, title or interest in your Intellectual Property or your Customer Data to Coconut, except as stated below. Coconut does not claim ownership of the materials you provide to us, but we need a license to those materials to deliver the Services. Accordingly, you grant Coconut a non-exclusive, transferable, sub-licensable, irrevocable, royalty-free, worldwide, fully paid-up right and license to host, use, distribute, expose, modify, run, copy, store, publicly perform, communicate to the public (including by telecommunication), broadcast, reproduce, make available, display, translate, and create derivative works of any materials provided by you (“Materials”) in connection with the Services. We may use our rights under this license (i) to operate, provide, and promote the Services, (ii) to perform our obligations and exercise our rights under the Coconut Agreement, (iii) to improve and enhance the Services and our other offerings, and (iv) to product data, information, or other materials that are not identified as relating to a particular individual or company (such data, information, and materials is the “Aggregated Data”). You represent, warrant, and agree that you have all necessary rights in the materials to grant this license. You irrevocably waive any and all moral rights you may have in the Materials in favour of Coconut and agree that this waiver may be invoked by anyone who obtains rights in any materials through Coconut, including anyone to whom Coconut may transfer or grant (including by way of license or sublicense) any rights in the Materials. Coconut may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation of any kind.
3.2 Coconut IP. Customer agrees that (i) the Services, including without limitation any associated software, documentation, applications, websites, tools and products, and any customization, modifications, enhancements and updates thereto, and all intellectual property rights therein (collectively, “Coconut IP”) are exclusively owned by Coconut or our third party providers; (ii) the Coconut IP contains valuable copyrighted material and is protected by Canadian, U.S. and international copyright and other intellectual property laws; (iii) subject to Customer’s compliance with the Agreement, Coconut grants Customer a license to access and use the Coconut IP, solely for the purposes of using the Services in compliance with the Agreement, as stated in Section 2; and (iv) Customer has no rights in the Coconut IP, other than the rights and licenses granted herein.
3.3 Customer Data Access. If Coconut receives a written request from Customer within thirty (30) days following the effective date of any termination or expiration of the Coconut Agreement, Coconut will provide Customer with temporary access to the Services and Customer may retrieve available Customer Data. After such thirty (30) day period, Coconut will have no obligation to maintain or provide access to any Customer Data and Coconut may delete all Customer Data available in Coconut’s systems, except where applicable law prohibits such deletion.
3.4 Feedback. Coconut welcomes any ideas or suggestions regarding improvements or additions received from Customer. Under no circumstances shall any disclosure of any idea, suggestion or related material (collectively, “Suggestions”) to Coconut be subject to any obligation of confidentiality or expectation of compensation. By sending a Suggestion to Coconut, you waive all rights in the Suggestion and accept that Coconut is free to implement and use the Suggestion, as provided by you or as modified by Coconut, without obtaining any permission or license from you or from any third party.
4. Privacy
4.1 Privacy Policy. Coconut is committed to protecting the privacy of your personal information, and the personal information of your clients. By using the Service, you acknowledge and agree that Coconut’s collection, usage and disclosure of this personal information is governed by the Coconut Privacy Policy.
4.2 DPA. To the extent that Coconut processes personal information of your clients as a “data processor” or “service provider” under certain data privacy or protection laws, including the EU or UK General Data Protection Regulation and the California Consumer Privacy Act, Coconut’s collection and use of personal information is subject to the Coconut Data Processing Addendum.
5. Marketing & Brand
5.1 Branding. If your environment in the Services will be branded, you will provide all required content to Coconut including business information, logos, themes, and trade-marks (“Customer Branding”). You grant to Coconut a license to provide the environment as set out in Section 3 (Intellectual Property Rights).
5.2 Case Study. Unless the parties have previously agreed in writing that this section does not apply to Customer, at Coconut’s request, Customer will: (i) Produce at least 2 pieces of joint marketing material per calendar year (examples include co-hosted webinars, thought leadership content articles, client testimonials); (ii) Collaborate with Coconut to develop relevant client case study/s (used on websites and/or social media and presentations) highlighting the utility of the Services; and (iii) Participate in up to five (5) calls with other merchants to discuss the Customer’s experience using the Services.
6. Term, Termination & Suspension
6.1 Term. Unless terminated earlier pursuant to the terms and conditions of the Coconut Agreement, the Coconut Agreement shall commence on the Effective Date and shall remain in force until terminated in accordance with this Section 6 (the “Term”).
6.2 Order Form Term. If the term set out in any Order Form extends past the termination or expiry of the Term, then the terms and conditions of the Coconut Agreement that apply to or govern such Order Form will survive the termination or expiry of the term of the Order Form.
6.3 Termination. Either Party may terminate the Coconut Agreement, effective on written notice to the other Party: (i) if the other Party breaches the Coconut Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; (ii) if either 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; and (iii) if the term of the Order Form has expired.
6.4 Effect of Termination. For the avoidance of doubt: (a) if the Order Form terminates in accordance with its terms, the Coconut Agreement will not co-terminate unless the Coconut Agreement is also terminated in accordance with the terms of the Coconut Terms of Service; and (b) if the Coconut Agreement terminates in accordance with its terms, then the Order Form will co-terminate. Upon the termination of the Coconut Agreement by either party for any reason: (a) Coconut will cease providing you with the Services and you will no longer have access to the Services section in your Administrative Console; (b) unless otherwise provided in the Coconut Agreement, you will not be entitled to any refunds of any prepaid Fees, pro rata or otherwise; and (c) any outstanding balance of any Fees or other charges owed by you to Coconut up to the effective date of termination will immediately become due and payable in full.
6.5 Return of Customer Data. Where Coconut receives a written request from Customer within 30 days after the effective date of termination or expiration of the Coconut Agreement, Coconut will provide Customer with temporary access to the Services so that Customer can retrieve its Customer Data. After such 30-day period, Coconut will have no obligation to maintain or provide any Customer Data and will reasonably thereafter, unless legally prohibited, delete all Customer Data in Coconut’s systems or otherwise in its possession or control.
7. Service Levels – Support
Coconut will provide you with technical support for the Services (“Support Services”) as stated in a Coconut Service Level Agreement.
8. Service Levels – Services
8.1 Coconut will use commercially reasonable efforts to make the Services available on a 24 x 7 x 365 basis, and aim to achieve 99.9% availability for each calendar month, excluding downtime or suspension of the Services, including for scheduled maintenance or due to a Force Majeure Event. Any additional terms relating to service levels will be stated in a Coconut Service Level Agreement and mutually-agreed by the Parties.
Account Suspension. Coconut may issue notice to you for non-compliance with (a) this Coconut Agreement or (b) for any Coconut requirement in delivery of the Services, at Coconut’s sole discretion (“Infraction Notice”). Where Customer receives three (3) Infraction Notices in any rolling twelve (12) month period, Coconut may suspend your Coconut account (“Account Suspension”) for a period of two (2) weeks, or such other duration as Coconut determines at its sole discretion. While a Customer is under Account Suspension, Coconut will be under no obligation to perform Services. Prior to reinstatement of any Coconut account, Coconut may require Customer to provide a corrective action plan (“Corrective Action Plan”) setting out the remedial steps that Customer will perform to address the Infraction Notices, and any such Corrective Action Plan must be acceptable to Coconut.
9. Invoicing & Payment
9.1 Fees. You will pay Coconut all fees according to the rates stated in an Order Form or within the Administrative Console (“Fees”) as may be amended from time to time. Fees are payable in advance, without setoff or deduction, and are based on the Services purchased and not on usage. Your payment obligations are non-cancellable, and Fees are not refundable.
9.2 Invoicing. Coconut will send invoices to the address that Coconut has on file for Customer for any Fees that are due. You agree to pay invoiced amounts within 30 calendar days of the invoice date. It is your responsibility to review all invoices for accuracy. If you believe that an invoice contains an error, you must contact Coconut no later than 30 days after the invoice date. The Parties will discuss any disputed amounts in good faith in order to resolve any dispute. Coconut may suspend Customer’s access to the Services until all amounts due are paid. If outstanding Fees remain unpaid for thirty (30) days following the date of suspension, Coconut may terminate the Coconut Agreement. Any late payment by Customer will incur interest at a rate equal to the greater of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate, plus all expenses of collection.
9.3 Taxes. You will pay applicable customs, duties, sales, use, value added or other taxes, federal, state, provincial or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by the Coconut Agreement, excluding only taxes based on Coconut’s net income. You agree to indemnify, defend, and hold Coconut, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from any failure to report or pay any such taxes, duties or assessments. If you are exempt from payment of such Taxes, you must provide Coconut with evidence of your exemption, and such exemption will only apply from and after the date that Coconut receives evidence satisfactory to Coconut of your exemption.
9.4 Electronic Rate Card. As of the Effective Date, Fees are stated in an Order Form, as above at Section 9.1 (Fees). At a future date, Coconut may implement electronic rate cards to state Fees within the Administrative Console after providing written notice to Customer. Any such electronic rate card will be marked ‘Rate Card’ and uploaded to the Administrative Console on mutual agreement of the Parties, and may set out rates for Services (“Approved Rate Card”). Customer may have more than one Approved Rate Card listed in the Administrative Console, including if Customer has purchased multiple products or services, or receives Services in multiple territories. The Parties agree that Approves Rate Cards are subject to change, including as stated in Section 9.7 (Fee Changes).
9.5 Billing Schedule. Fees will be charged as stated in the Order Form or Administrative Console. All other charges under the Coconut Agreement will be charged by Coconut as they accrue.
9.6 Currency. Unless otherwise stated in the Order Form, any charges related to the Coconut Agreement will be calculated (a) in U.S. dollars and all payments shall be made in U.S. dollars for Customers based in the United States, and (b) in Canadian dollars and all payments shall be made in Canadian dollars for Customers based in Canada.
9.7 Changes. Where authorized, including for any renewal, the Parties agree that Coconut may amend the rates applicable for each of the Fees as follows:
a. Renewal. Services will automatically renew for additional periods equal to the expiring Term stated in an Order Form or twelve months (whichever is shorter) at the same Fees as the preceding Term plus 10%, unless either party gives the other written notice at least 30 days prior to the end of the then-current Term (each, a “Renewal Term”). If Customer adds Services during the Initial Term or any Renewal Term of an Order Form then (a) the amount of Customer’s Fees will increase as stated in the Order Form and, (b) the Term for any such additional Services shall be co-terminus with the Initial Term or any Renewal Term of the Order Form.
b. Input Costs. The Parties agree that the Fees may increase at any time during the Term by an amount equal to any increase to Coconut’s input costs (such as, without exclusion, increases to the cloud services rates that Coconut receives from third party service providers). Customer acknowledges that such input costs are subject to contracts of adhesion and that Coconut does not control the rates charged by large service providers.
c. Account Adjustments. The Parties may amend the rates applicable to each of the Fees on mutual written agreement. Such rates will be binding on the Parties as of the date mutually agreed in writing by the Parties, and shall replace those otherwise stated in the Order Form or Administrative Console.
d. Fee Changes. Where the Parties have not mutually agreed to Fees in advance, Coconut may amend the rates applicable to each of the Services at its discretion. Where Coconut amends rates pursuant to this Section 9.7(f) (Fee Changes), Coconut will endeavor to provide thirty (30) days’ prior written notice of such changes to Customer (“Fee Change Notice”). The rates stated in such Fee Change Notice will be binding on the Parties as of the date specified in the Fee Change Notice, and shall replace those otherwise stated in any expired order form or within the Administrative Console.
e. Pricing Model Changes. Where the Parties have not mutually agreed to Fees in advance, Coconut may amend the basis for which Fees are charged and the manner in which they are calculated through changes to Coconut’s pricing model at Coconut’s sole discretion where Coconut updates the pricing model for its products and services. Where Coconut amends rates pursuant to this Section 9.7(d) (Pricing Model Changes), Coconut will provide at least ninety (90) days’ prior written notice of such changes to Customer (“Pricing Model Change Notice”). The rates stated in the Pricing Model Change Notice will be binding on the Parties as of the date specified in the Pricing Model Change Notice, and such rates shall replace those otherwise stated in any expired order form or within the Administrative Console.
9.8 Right of Set-Off. Coconut may deduct any amount owed to Coconut by Customer that has not been credited against payments owed by Coconut. Coconut may deduct the entire amount owed against the charges otherwise payable or expenses owed to you under the Coconut Agreement until such time as the entire amount owed to Coconut has been paid. Coconut will have the right to withhold any charges it disputes in good faith under the Coconut Terms of Service and such withholding shall not thereby constitute or be deemed to constituted a default or breach by Coconut of the Coconut Terms of Service, and Customer shall not thereby be released from or permitted to cease performance of any of its obligations hereunder during the continuance of any such good faith dispute.
10. Confidential Information
10.1 Definitions. For the purposes of the Coconut Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its service providers, licensors or customers that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
10.2 Confidentiality Obligations. Neither party shall use any Confidential Information of the other party except as necessary to exercise its rights or perform its obligations under the Coconut Terms of Service or as expressly authorized in writing by the other party. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or Affiliates that have a “need to know” for the purposes of receiving or providing the Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement; (ii) use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
a. Exceptions to Confidentiality. Notwithstanding Section 10.2, Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Laws or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
b. Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
c. Personal Information. The Coconut Privacy Policy will govern Coconut’s use and storage of, and access to, personal information, its users or transmitted via or stored on the Services. Any personal information that you transmit to Coconut, or that Coconut collects on your behalf relating to residents of the European Economic Area will be processed in accordance with the Coconut Privacy Policy.
11. Warranties
Each Party represents and warrants that: (i) it has full power and all necessary rights to enter into this Agreement and has been duly authorized to do so; and (ii) it will carry out its obligations under this Agreement in compliance with Applicable Laws.
Customer represents and warrants that the Customer Data will only contain Personal Information for which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and otherwise has all authority, in each case as required by Applicable Laws, to enable Coconut to provide the Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Coconut and to or from all applicable third parties.
12. DISCLAIMERS
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 12, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND. COCONUT AND ITS THIRD PARTY LICENSORS AND SUPPLIERS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING THE SERVICES OR ANY PRODUCTS PROVIDED UNDER THE COCONUT TERMS OF SERVICES AND COCONUT SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COCONUT DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THIRD PARTY COMMUNICATIONS AND ANY THIRD PARTY WEBSITES OR CONTENT DIRECTLY OR INDIRECTLY ACCESSED THROUGH THE SERVICES.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, COCONUT HEREBY DISCLAIMS ALL IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE USE OF THE SERVICES OR THIRD-PARTY SERVICES IS AT YOUR OWN RISK.
You, on your own behalf and on behalf of any successors, subsidiaries, Affiliates, officers, directors, shareholders, employees, assigns, and any other person or entity claiming by, through, under, or in concert with them (collectively, the “Releasing Parties”), irrevocably acknowledge full and complete satisfaction of and unconditionally and irrevocably release and forever fully discharge Coconut and each of its Affiliates, and any and all of its and their predecessors, successors, and Affiliates, past and present, as well as each of our and their partners, officers, directors, shareholders, agents, employees, representatives, attorneys, and assigns, past and present, and each of them and all persons acting by, through, under, or in concert with any of them (collectively, the “Released Parties”), from any and all claims, obligations, demands, causes of action, suits, damages, losses, debts, or rights of any kind or nature, whether known or unknown, suspected or unsuspected, absolute or contingent, accrued or unaccrued, determined or speculative (collectively, “Losses”) which the Releasing Parties now own or hold or at any time have owned or held or in the future may hold or own against the Released Parties, or any of them, arising out of, resulting from, or in any way. You, on your own behalf and on behalf of all other Releasing Parties, recognize that you, and each of the Releasing Parties, may have some Losses, whether in tort, product liability, contract, warranty, or otherwise, against the Released Parties of which you, or any of them, are totally unaware and unsuspecting, or which may arise or accrue after Effective, which the Releasing Parties are giving up by agreeing to the Coconut Terms of Service.
In addition to those terms otherwise stated in this Section 12, you agree that Coconut is not responsible for any Losses resulting from, or in any way related to, any action by a government agency or other regulatory authority including.
13. Indemnities
Customer Indemnity. Customer will defend, indemnify and hold harmless Coconut and its subsidiaries, affiliates, partners, officers, directors, employees and agents (each, a “Coconut Indemnitee”) from and against any and all Losses incurred by a Coconut Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Coconut Indemnitee) that arise from or relate to: (i) Customer Data or Customer Content; (ii) Customer’s breach of Sections 2(b) or 11(a); (iii) your use or misuse of Services, including by Customer or any Permitted User; (iv) your breach of the Coconut Terms of Service; (v) your violation of any applicable law or Third Party Rights.
Coconut Indemnity. Coconut will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate of a Customer Indemnitee) that arise from or relate to any allegation that the Services infringe any third-party Intellectual Property Right in Canada. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any Services into, or any combination, operation, or use of any Services with, any products or services not provided or authorized by Coconut, unless such infringement would also have resulted solely from the use of the Services without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of any Services other than by Coconut or with Coconut’s express written approval; or (C) unauthorized use of the Services.
If the Service is, or in Coconut’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of any Service is enjoined or threatened to be enjoined, Coconut may, at its option and sole cost and expense: (A) obtain the right for Customer to continue to use the affected Services materially as contemplated by this Agreement; (B) modify or replace Services, in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services under this Agreement; or (C) if Coconut determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate the Services, in whole or in part, and require Customer to immediately cease all use of the terminated Services or part or feature thereof and refund any unused prepaid Fees for the terminated Services, if applicable.
Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 13. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 13 will not relieve the Indemnitor of its indemnity obligations under this Section 13 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
14. Limitation of Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THESE COCONUT TERMS OF SERVICE EXCEED THE FEES PAID BY YOU UNDER THESE COCONUT TERMS OF SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 14 ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED BY COCONUT FOR THE SERVICES AND THAT IF COCONUT WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, THE FEES WOULD OF NECESSITY BE SUBSTANTIALLY INCREASED. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. THE EXCLUSIONS AND LIMITATIONS STATED IN THIS SECTION 14 DO NOT APPLY TO (I) CUSTOMERS OBLIGATIONS UNDER SECTION 13; OR (II) LOSES ARISING OUT OF O RELATING TO CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 2 OR 9.
15. General Provisions
(a) Notices. Any notices or demands to or upon a party shall be made in writing and sent to such party electronically using the email address and the notice contact specified in this Section 15(a). Notices sent to either Party will be effective when delivered. Notices must be sent: (i) if to Coconut, to the following address:
Attention: Legal Department
Email: contractnotices@coconutsoftware.com
and (ii) if to Customer, to the current email address that Coconut has on file with respect to Customer. Coconut may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Coconut current at all times during the Term. Except as otherwise specified in the Coconut Terms of Service all notices, permissions and approvals will be deemed to have been given upon the first business day after sending by email.
(b) Publicity. Customer agrees that Coconut may use Customer’s name and logo on Coconut’s website, and as a part of a general list of customers for use and reference in corporate, promotional and marketing literature.
(c) Third Party Communications. The Services allow Customer to communicate with an individual or an organization other than Coconut (a “Third Party”) to book appointments. Any communication with a Third Party, including any services and any advice, opinion or information that Customer may obtain by way of such communications through the Services, or any payment transaction facilitated or enabled by the Services, is between Customer and this Third Party. Coconut is not responsible for the content of these communications and expressly disclaims any responsibility or liability for any claims, losses or damages that may arise as a result of such communications or failure of communications. Coconut reserves the right, but has no obligation, to become involved in any way with any dispute between Customer and another party arising out of or that is in connection with the Services. Coconut is not responsible for the conduct, whether online or offline, of any user of the Services.
(d) Communications. Customer is solely responsible for its interactions with other users of the Services, including any communications, notes or other content that Customer exchanges or posts through the Services. Coconut reserves the right, but has no obligation, to review disputes between Customer and other Services users. This includes the right to review messages, notes or other content exchanged or posted through the Services, based on any reports that Coconut receives alleging the violation of this Agreement through the use of the Services, including reports regarding alleged harassment, indecency, and offensive messages.
(e) Communications Not Confidential. Coconut does not guarantee the confidentiality of any communications made by Customer through the Services. Coconut does not guarantee the security of data transmitted over the Internet or public networks in connection with Customer’s use of the Services.
(f) Third Party Content, Website or Services. The Services may provide links or access to third party content, websites, or services. Likewise, Coconut may allow Customer to access the Services from third party systems. Coconut does not endorse any third party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third party content, websites, services, or systems are not under Coconut’s control, and if Customer chooses to access any such content, websites, or services, or to access the Services from such systems, Customer does so entirely at Customer’s own risk. Customer acknowledges that it may be required to accept terms of use applicable to third party content, websites, services, or systems and agree to accept and comply with any such terms of use.
(g) Additional Terms. Customer’s access to and use of certain functionalities provided in or through the Services may be subject to additional terms and conditions presented to Customer by Coconut or its service providers. Such additional terms and conditions are incorporated herein by reference. If there is a conflict or inconsistency between the terms and conditions of such additional terms and this Agreement, then the provisions of this Agreement will govern to the extent of such conflict or inconsistency, unless the conflicting term in the additional terms expressly states that the conflicting term in this Agreement do not apply. If Customer does not accept and agree to such additional terms and conditions, Customer may not be able to, and should not, access or use those functionalities. Coconut may terminate any add-ons or functionalities provided in or through the Services, at any time and for any reason.
(h) Assignment. The Coconut Agreement ensures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns. You may not assign the Order Form, these Coconut Terms of Service, or any part of the Coconut Agreement without the prior written consent of Coconut, such consent not to be unreasonably withheld. Coconut may assign the Order Form, Coconut Terms of Service, and the Coconut Agreement at any time.
(i) Governing Law and Attornment. The Coconut Agreement is governed by and is to be construed and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Coconut Terms of Service and is hereby expressly excluded. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with the Coconut Terms of Service, and to bring any lawsuits in connect with the Coconut Agreement in Toronto, Ontario, Canada.
(j) Export Restrictions. Customer agrees not to directly or indirectly export or re-export any of the Services without first obtaining all required licenses, permits and permissions required under Applicable Law. Coconut makes no representation or warranty that the Services may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
(k) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
(l) Force Majeure. Except for obligations to pay any Fees owing under the Coconut Agreement, neither party shall be deemed to be in breach of the Coconut Agreement for any failure or delay in performance caused by reasons beyond such party’s reasonable control, including but not limited to acts of God, extreme weather, earthquakes, wars, terrorism, communication failures, strikes (other than strikes at such party’s facility or involving such party’s employees), civil unrest, acts of terror, Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure Event”).
(m) Severability. If any provision of the Coconut Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of the Coconut Agreement shall remain in full force and effect.
(n) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not stop enforcement of such provision at a different time.
(o) Independent Contractors. Coconut’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party. Neither party shall be deemed to be an employee, agent, partner, joint venture or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology in connection with the Services or these Coconut Terms of Service (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
(p) No Exclusivity. Coconut reserves the right to provide products and services (including Services) to any third-party, including your competitors, and makes no promise of exclusivity, preference, or ‘most-favoured’ pricing in any particular market segment.
(q) Entire Agreement. The Coconut Agreement and any documents incorporated by reference constitutes the entire agreement between the Parties respecting Customer’s use of the Services, and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
(r) Amendments. You acknowledge and agree that Coconut may amend these Coconut Terms of Service at any time by posting the relevant amended and restated Terms of Service on Coconut’s website, available at https://www.coconutsoftware.com/terms-of-service and any such amendments to the Coconut Terms of Service are effective as of the date of posting. Your continued use of the Services after the amended Coconut Terms of Service are posted to Coconut’s website constitutes your agreement to, and acceptance of, the amended Coconut Terms of Service. If you do not agree to any changes to the Coconut Terms of Service, do not continue to use the Service.
(s) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 9 (Fees and Payment), Section 10 (Confidential Information), Section 11 (Disclaimer), Section 14 (Limitation of Liabilities), and Section 15 (General Provisions).
(t) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Last updated on: July 1, 2023