Liquify Solutions Inc. Software as a Service Agreement

This Software as a Service Agreement (the "Agreement") is made effective as of July 23, 2018 by and between ("you" or "your") and Liquify Solutions Inc. (together with its affiliates, "Liquify", "we", "us", or "our") and sets forth, among other things, the terms and conditions for your use of the website located at liquify.ca (the "Website") and the products and services available to you through the Website (collectively, the "Service"). If you are using the Service for the purposes of selling your products, any reference in this Agreement to "agent" means you. If you are using the Service for the purposes of purchasing products made available by others, any reference in this Agreement to "buyer" means you.

  1. Use of Service
    1. General. By using the Service in any manner, including but not limited to creating an Account (defined below), posting an Offer (defined below), or submitting an order for a Product (defined below), you accept and agree to the provisions of this Agreement without any reservations, modifications, additions or deletions, including any additional terms and conditions and policies referenced herein, as hyperlinked in this Agreement and/or posted on the Website. If you do not agree to any provisions contained in this Agreement, you are not authorized to use the Service. You may be denied access to the Service, with or without notice to you if you do not comply with any of the provisions of this Agreement.
    2. Account. To access and use the Service, you must create an Account with one or more valid liquor license(s) (each, a "License") issued by the B.C. Liquor Control and Licensing Branch ("LCLB"), company name, mailing address, and email address. You may only create one Account per License. If you hold multiple Licenses, you can manage all of these Licenses in the same Account. You are responsible for all activities that occur under your Account, regardless of whether the activities are undertaken by you, your employees or a third party, and, except to the extent caused by our breach of this Agreement, we are not responsible for unauthorized access to your Account. You will contact us immediately if you believe an unauthorized third party may be using your Account or if your Account information is lost or stolen. You may terminate your Account and this Agreement in accordance with the Section titled "Term and Termination".
    3. License. If your License is at any time revoked, suspended or otherwise cancelled by the LCLB, you will notify us immediately of such revocation, suspension or cancellation and access to your Account and your ability to use the Service may be suspended or termination, at the sole discretion of Liquify, in accordance with the provisions of this Agreement.
  2. Liquify is a Venue
    1. Venue. Liquify acts as a venue, or tool, to allow you and other users who hold Licenses and who comply with Liquify’s policies to offer, sell and buy beer, wine, cider, spirits, refreshment beverages and other alcoholic products (each, a "Product"). Although Liquify reserves the right to and may review Offers as posted by agents before they are available for review and selection by a buyer, Liquify does not accept any responsibility or liability for the performance of an Offer or the truth or accuracy of the claims made within that specific Offer including, but not limited to, the ability of the agent who has posted an Offer to sell the Product on the terms set out in the Offer, the ability of a buyer who has agreed to buy a Product on the terms set out in the Offer to complete the purchase.
    2. No Ownership. Liquify does not at any time take legal ownership or control over any Product, and Liquify is not responsible for effecting the legal transfer of ownership of a Product, whether from an agent to the B.C. Liquor Distribution Branch ("LDB"), from the LDB to a buyer, or from an agent directly to a buyer. Consequently, Liquify does not provide any assurance to you that an agent who has posted an Offer to sell a Product will be able to complete the sale and deliver the Product on the terms set out in the Offer, nor does Liquify provide any assurance to you that a buyer who has agreed to buy a Product on the terms set out in an Offer will be able to complete the purchase of that Product on the terms set out in the Offer. Liquify provides no assurance or guarantee that a particular buyer or agent will complete a transaction.
  3. Changes
    1. Amendments to Agreement. We reserve the right, from time to time, to modify, amend, or restate this Agreement, our Privacy Policy or any other terms, rules or conditions that we may implement from time to time. You acknowledge and agree that you will execute, as necessary, any amendments to or restatements of this Agreement and that your continued use of the Service is subject to you agreeing to the terms of any such amendments to or restatements of this Agreement. If you do not agree to, or cannot comply with, the Agreement as amended, you are not authorized to use the Service. We reserve the right to refuse to provide the Service, or any of our other services or products, to anyone at any time.
    2. Modifications to the Service. We may change, discontinue, or alter the Service, add new services or tools that form part of the Service or add, change or remove features or functionality of the Service from time to time. If we make any material change to or discontinue any part of the Service we will post a notice of such material change or discontinuation on the Account and/or the Website.
  4. Offers and Products
    1. Agents. If you are an agent for a Product, you may use your Account to create and post an offer for a Product that you wish to sell to buyers who have an Account with Liquify (each, an "Offer"). Each Offer, prior to going live on the Service and being available for selection by a buyer, will be subject to review by Liquify in its sole discretion.
    2. Buyers. If you are a buyer, you may use your account to view Offers posted by agents, and place orders for Products that you wish to purchase.
    3. Agent Offer Terms. If you are an agent, it is your sole responsibility to ensure that you can fulfill the terms and conditions of each Offer you make available through the Service. Within each Offer, you must include, at a minimum, the following terms and conditions: price, delivery window, LDB registration for the Product (the "Registration"), vintage (if applicable), labeling (if applicable), year (if applicable), quantity available, any minimum number of units that must be ordered or purchased (either by an individual buyer or in the aggregate) before the Product will be available, and any other term or condition to which the Offer for the Product is subject (collectively, the "Offer Terms"). It is your responsibility, as an agent, to ensure that if all of the stated Offer Terms of an Offer are met, that you can fulfill the buyer’s order for the Product. It is your responsibility, as an agent, to ensure that the Offer Terms are complete and accurate in all material respects. Liquify reserves the right to cancel any Offer where we believe that the Offer Terms are misleading, incomplete or inaccurate or otherwise violate the terms of this Agreement or any other policy of Liquify applicable to the use of the Service.
    4. Buyer Agreement to Offer Terms. If you are a buyer, it is your sole responsibility to ensure that you are satisfied with the Offer Terms of any Product you wish to purchase through the Service. You acknowledge that the Offer Terms for any Product are created by the agent for that Product, not Liquify. You further acknowledge that some Products may have Offer Terms that require a minimum order, either by you as an individual buyer or in the aggregate, and therefore unless that minimum order amount is met the Offer Terms may not be fulfilled and the Product may not be available.
    5. Legally Binding Agreement. If you are a buyer, you acknowledge that upon placing an order for a Product you are accepting the Offer Terms for that Product and, upon the agent fulfilling the Offer Terms, your order constitutes a legally binding agreement between you and the agent and you, as a buyer, will be obligated to take delivery of and make payment for the Product in accordance with the Offer Terms. If you are an agent, you acknowledge that a buyer placing an order for a Product constitutes a legally binding agreement between you and the buyer and you, as an agent, are obligated to make commercially reasonable efforts to fulfill the Offer Terms and that, upon such fulfillment, you are obligated to deliver the Product to the buyer in accordance with the Offer Terms.
    6. Non-fulfillment of Offer Terms. If, after an order is placed for a Product by a buyer, the agent, after making commercially reasonable efforts to fulfill the Offer Terms, is unable to fulfill an Offer Terms for any reason outside of the control of the agent (including for example, but not limited to, the minimum order threshold not being met or the unanticipated lack of available Product from the agent’s supplier), the agent will notify Liquify immediately that the Offer Terms have not been fulfilled, and the order will be cancelled so that Liquify may, in turn, notify the buyer.
    7. Changes to Offer Terms. The change to Offer Terms for a Product creates a new Offer. Prior to the placing of an order by a buyer, if you are an agent you may make changes to the Offer Terms of an Offer at anytime. At any time after a buyer has placed an order for a Product under an Offer, the agent may not change the Offer Terms for that Offer without the written agreement from the buyer. A buyer is under no obligation to accept the changed Offer Terms, and if a buyer chooses to not accept such changed Offer Terms the order as originally placed by the buyer will be cancelled without recourse by either agent or buyer.
    8. Cancelled Offers. If you are an agent, you may cancel an Offer at any time prior to a buyer placing an order for the Product made available under the Offer.
    9. Prohibited Changes. An agent is not permitted to change an Offer Term in respect of an Offer where the purpose of the change is to provide one buyer with preferential terms as compared to other buyers (unless the possibility of preferential terms was an original Offer Term), or where the change fundamentally changes the nature of the Product. Further, it will be considered a breach of this Agreement if you, as an agent, change an Offer Term in respect of an Offer or cancel an Offer where the purpose or result of such change or cancellation is the avoidance of payment of any Transaction Fees to Liquify.
  5. Order Fulfillment
    1. LDB Products. If the Product sold under a particular Offer is a Product that is distributed through the LDB (for example, an imported wine), then the agent will receive payment for the Product by the LDB. Upon fulfillment of the Offer Terms, if you are an agent you will receive from Liquify a batch of completed, signed Wholesale Agent Order Forms ("WAOF"), which you, as the agent, will be required to submit to the LDB. If you are a buyer, your information, as provided to Liquify, will be populated into a WAOF and delivered to the agent for submission to the LDB and you will submit payment for the Product to the LDB for processing. The buyer acknowledges that its payment information is on file with the LDB, and upon submission of the WAOF the transaction and the buyer’s payment for the Product will be processed and charged through the LDB’s processing system.
    2. Domestic Products. If the Product sold under a particular Offer is a Product that is delivered directly (for example, a domestic beer, wine or spirit), then the agent will receive payment for the Product directly from each buyer and the completed invoice ("Doc 60") through the Service. If you are a buyer, your information, as provided to Liquify, will be populated into a Doc 60 and delivered to the agent and, subsequent to the delivery of the Doc 60, the purchase price for the Product will be charged to your credit card in accordance with the credit card authorization provided.
    3. Taxes and Fees. If you are an agent, it is your sole responsibility to determine the fees, taxes (including, but not limited to, any applicable liquor tax, LDB "mark-up", federal duties, excise tax, provincial sales tax or goods and services tax) and other charges (collectively, "Sales Taxes") that you are obligated to collect and remit in respect of the sale of any Product, to set out these Sales Taxes in the Offer Terms, and to subsequently remit such Sales Taxes to the appropriate agency or authority.
    4. Compliance. You agree to comply with all local laws applicable to your use of the Service, including but not limited to laws with respect to the purchase and sale of alcoholic products, collection and use of personal information and online conduct and acceptable content. In addition, you agree to comply with all of Liquify’s policies, operating rules and procedures in effect now or that may be in effect in the future, and acknowledge that such policies, operating rules and procedures are each incorporated by reference into this Agreement and may be updated by Liquify from time to time without notice to you.
    5. Third Party Provider. You acknowledge that Liquify is not a payment gateway, merchant account provider and does not directly store your credit card number or manage the processing of any payment under this Agreement. Liquify complies with, and has engaged the services of third parties who have represented to Liquify that they are compliant with, the Payment Card Industry Data Security Standards (PCI-DDS) and the Payment Application Data Security Standards (PA-DSS) as applicable, to provide such services. You are responsible for establishing a merchant account with a payment processing provider in order to receive payment for the purchase of Products under this Agreement.
  6. Fees and Billing
    1. Buyers. If you are a buyer, you acknowledge that you will pay to Liquify either monthly or annual fee (in each case, the "Buyer Fee"), as selected, for use of the Service, as set out on the fee schedule attached hereto (the "Fee Schedule"), which may be amended from time to time in accordance with this agreement. Liquify may, in its sole discretion, waive the Buyer Fee for any period. There is no charge or cost payable to Liquify for placing an order for a Product made available under an Offer.
    2. Buyer Fees. The Buyer Fee is a per Account fee (for example, if you have chosen to set up two Accounts for two different buyer Licenses, you will pay a Buyer Fee in respect of each License), due and payable at the time of the creation of your Account and thereafter on the same day in each subsequent month or for months that do not have the same day, the day preceding (for example, if you set up an Account on March 15, the next Buyer Fee will be due April 15 or, if you set up an Account on March 31, the next Buyer Fee will be due April 30), if you have chosen a monthly subscription, or on each annual anniversary of the creation of your Account, if you have chosen an annual subscription.
    3. Agent. If you are an agent, you acknowledge that you will pay to Liquify the fees and commissions, together with applicable Taxes (as defined below) (collectively, the "Agent Fees"), as set forth on the Fee Schedule, as amended from time to time in accordance with the terms of this Agreement.
    4. Agent Fees. The Annual Fee (as defined on the Fee Schedule) is a per Account fee (for example, if you have chosen to set up two Accounts for two different agent Licenses, you will pay an Annual Fee in respect of each Account), due and payable at the time of the creation of your Account and thereafter on the anniversary of the date on which you created your Account. Transaction Fees (as defined on the Fee Schedule) are calculated by Liquify at the time that the Offer Terms for an Offer are fulfilled and the accompanying WAOFs or Doc 60’s are delivered to you, and are due and payable at the time the Offer Terms are fulfilled. Any fees or commissions.
    5. Payment You will pay to us the Annual Fee and the Transaction Fees by credit card or, at our sole discretion, by another payment method that we support. You authorize Liquify to charge to the credit card number you provide through your Account all Annual Fees and Transaction Fees as they come due and payable. All amounts payable under this Agreement will be made without set-off or counterclaim and without any deduction or withholding.
    6. Changes. Liquify reserves the right to amend or modify the Fee Schedule from time to time upon notice to you. Fees for any new product or service offered by Liquify will be effective when Liquify notifies you of such fees either by providing you with an amended Fee Schedule in hard copy or through a notice posted to your Account. We may increase the Fees or add new fees, charges or commissions for any existing Service by giving you at least 30 days’ advance notice. We may charge you interest at the rate of 30% per annum, calculated monthly, on all late payments.
    7. Taxes. All Fees and other fees and charges payable by you are exclusive of applicable federal, provincial or other applicable governmental sales, goods and services, harmonized or other taxes, duties, fees or charges now in force or enacted in the future (collectively, "Taxes"). You will provide us with any information we reasonable request to determine whether we are obligated to collect certain Taxes, including, but not limited to federal goods and services tax ("GST"), liquor tax ("LT") or provincial sales tax ("PST), including your GST, LT and/or PST number. If you are legally exempt from the requirement to pay any such Taxes, you must provide us with legally sufficient tax exemption certificates for each taxing jurisdiction that has granted you such exempt status. We will apply the tax exemption certificates to charges and fees under your Account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by applicable law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld or deducted amounts have been paid to the relevant taxing authority.
    8. No Refunds. Subject only to applicable laws which may require otherwise, you acknowledge and agree that Liquify does not, and will not under any circumstances be obligated to, provide refunds of any fees or charges (including but not limited to Annual Fees or Transaction Fees) paid by you under this Agreement for use of the Service.
    9. Fee Avoidance. The price stated in an Offer must be an accurate representation of the sale. The agent must not alter the item’s price after a sale, cancel an Offer, use another person’s Account, or engage in any other conduct for the purpose of avoiding any Transaction Fees.
  7. Restricted Activities and Items
    1. Content. You are responsible for your conduct and activities on and regarding the Website and your use of the Service and any and all data, text, information, graphics, images, photographs, items and links or other content (collectively, "Content") that you submit, post and display through your Account and/or in connection with your use of the Service.
    2. Restricted Activities. Your use of the Service and your Content must not:
      1. Be false, inaccurate or misleading,
      2. Be fraudulent or involve the sale of illegal, counterfeit or stolen items,
      3. Violate this Agreement or any of the policies, operating rules or procedures of Liquify in effect now or in the future and each of which are incorporated by reference into this Agreement,
      4. Violate any law applicable to you,
      5. Interfere with any other agent or buyer’s use of the Service,
      6. Impersonate any person or falsely state or otherwise misrepresent your affiliation with any person,
      7. Create an Account or use the Service for any reason or purpose other than the sale and purchase, as applicable, of Products,
      8. Modify, adapt or hack the Website or modify another website so as to falsely imply that it is associated with Liquify or the Website,
      9. Hold yourself out as a representative, agent, affiliate or any other person who may have the ability to create a liability or bind Liquify to any obligation or cause Liquify to lose (in whole or in party) the services of any of Liquify’s internet service providers or other suppliers,
      10. Link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under this Agreement or any of the policies, operating procedures or rules of Liquify incorporated by reference herein, or
      11. Create an Offer or make available a Product or consummate any transaction over the Service that, by paying Liquify the Transaction Fee, could cause Liquify to violate any applicable law, statute, ordinance or regulation or that violates the terms of this Agreement.
  8. Intellectual Property
    1. Liquify Intellectual Property. As between you and us, we own and reserve all right, title and interest in and to the Service. You may not use the names, trademarks, logos and graphics files that represent the Service without our written permission. The Service contains copyrighted material, trade secrets and other proprietary material.
    2. Patent, Copyright, Trademark Notices and Third Party Software Licenses. The Service and documentation were designed and programmed by and are Copyright © 2014 Liquify Solutions Inc. The following are trademarks of Liquify: Liquify, and other Liquify trademarks, service marks, graphics, and logos existing now or in the future (collectively, the "Trademarks"). You are not granted any right or license with respect to the Trademarks.
    3. Your Intellectual Property. As between you and us, you or your licensors own all right, title and interest in and to any content you submit to Liquify in connection with your use of the Service ("You Content"). Except as provided otherwise in this Agreement, we obtain no rights under this Agreement from you or your licensors to Your Content, including any related intellectual property rights. You consent to our use of Your Content to provide the Service to you. By providing Your Content to Liquify and others through your use of the Service, you grant Liquify a worldwide, non-exclusive, royalty-free, fully paid up license (with a right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute Your Content through the Service and any other product or service that Liquify may offer now of in the future (whether now known or hereafter developed). You acknowledge and agree that Liquify may collect, aggregate, analyze and use Your Content and any and all other content, information and data provided by you through the Service (collectively, the "Data") for the purposes of analyzing and assessing the features of the Services, implementing new features to the Service, creating additional products and services, and for any other reasonable commercial purpose as Liquify may determine, provided, however, that Liquify will maintain the confidentiality of such Data and will not discloses the Data to any third party without your prior written consent except where such disclosure is required by law.
  9. Grant of License
    1. Grant of License. Subject to your agreement and continued compliance with this Agreement and the Privacy Policy and any other rules, policies or terms that we may adopt in the future, Liquify grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service in accordance with the terms and conditions set forth in this Agreement. Liquify reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. ANY USE OF THE SERVICE NOT SPECIFICALLY AND EXPRESSLY PERMITTED UNDER THIS AGREEMENT IS STRICTLY PROHIBITED.
    2. Restrictions. You agree that you will not use the Service in any manner or for any purpose other than as expressly permitted by this Agreement. Specifically, without limiting the foregoing, you agree that you will not, nor will you attempt to:
      1. use the Service to reproduce, transmit, display or distribute any material that infringes the intellectual property rights of any third party including any patent, copyright, trademark, service mark, trade secret, or other proprietary right, in any medium or via any method without Liquify’s express written permission;
      2. use or access the Service in any way that violates the terms of this Agreement;
      3. disassemble, decompile or otherwise reverse engineer the Service or apply any other process or procedure to derive the source code of any software included in the Service or alter or remove any proprietary rights or copyrights notice or identification which indicates ownership of the Service;
      4. copy, alter, modify or create any derivative work of the Service, except as expressly permitted herein;
      5. access or use the Service in a way intended to avoid incurring charges, fees or the payment of any applicable Taxes;
      6. deliver, disclose, or convey to any third party, either directly or indirectly, the contents of the Service and the software underlying the Service; or
      7. permit or enable any third party to do any of the foregoing.
  10. Service Interruptions
    1. Service Interruptions. Your access to and use of the Service may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Service for any reason, including as a result of power outages, system failures or other interruptions. In addition, Liquify is entitled to suspend access to any portion or all of the Service at any time
      1. for scheduled downtime to permit us to conduct maintenance or make modifications to any service or product;
      2. in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable service or product, to you or to any of our other customers if the Service were not suspended; or
      3. in the event that we determine that any service or product is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions").
    2. Notice of Interruptions. To the extent we are able, we will endeavor to post updates on the Account or the Website regarding any Service Suspension and resumption of service following any such suspension.
  11. Security
    1. Back-Up and Security. You are solely responsible for maintaining the confidentiality of your email and password associated with your Account, for restricting access to your password and to your computer while logged into the Account, and for properly configuring and using the Service and taking appropriate steps to secure, protect and back-up Your Content including but not limited to Account Information and, if you are an agent, your Offers. You agree to accept responsibility for all activities that occur under your Account or from your computer.
    2. No Security Guarantee. We endeavor to use reasonable security measures to protect against unauthorized access to your Account. We cannot, however, guarantee absolute security of your account, Your Content, Account Information or any other information we collect, and we cannot promise that our security measures will prevent third party "hackers" from illegally accessing the Account, Your Content, Account Information or any other information. You agree to immediately notify us of any unauthorized use of your Account or any other breach of security, and to accept all risks of unauthorized access to the Account, Your Content, Account Information and any other information you provide to Liquify or others though the Service.
    3. Encryption. Your Content and Account Information, except for Your Content or Account Information that is a credit card number, may be transferred unencrypted over one or more networks and may be changed, modified or otherwise adapted as required to meet the technical requirements of such transmission.
  12. Privacy Policy
    1. Privacy Policy. Your use of the Service is subject to our Privacy Policy, as it may be updated and amended from time to time, which is available through the Website and is incorporated into and made a part of this Agreement.
  13. Feedback
    1. Feedback. In the event you elect, in connection with the Service or any other product or service we offer from time to time, to communicate to us suggestions for improvements to the Service or for any new product or service (collectively, "Feedback"), we will own all right, title, and interest in and to the Feedback and we shall be entitled to use the Feedback without restriction, even if you have indicated such Feedback as confidential or restricted as to our rights or use. You hereby irrevocably assign all right, title and interest in and to the Feedback to us and waive any and all moral rights you may have in the Feedback, and agree to provide us such assistance as we may require to document, perfect, and maintain our rights in and title to the Feedback. You agree that:
      1. your Feedback does not contain confidential or proprietary information;
      2. Liquify is not under any obligation of confidentiality, express or implied, with respect to the Feedback;
      3. Liquify shall be entitled to use or disclose (or choose not to use or disclose) such Feedback for any purpose, in any way, in any media worldwide; and
      4. you are not entitled to any compensation or reimbursement of any kind from Liquify under any circumstances.
  14. Confidential Information
    1. Meaning. "Confidential Information" means all nonpublic information disclosed by Liquify, its licensors, business partners or our or their respective employees, contractors or agents to you or that is otherwise available to you in the course of using the Service or any other product or service offered by Liquify from time to time. Confidential Information includes:
      1. information relating to Liquify, our licensors and business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs;
      2. third-party information that we are obligated to keep confidential; and
      3. the nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information that:
        1. is or becomes publicly available without breach of this Agreement;
        2. can be shown by documentation to have been known to you at the time of your receipt from us;
        3. is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or
        4. can be shown by documentation to have been independently developed by you without reference to the Confidential Information.
    2. Confidentiality and Publicity. You may use Confidential Information only in connection with your use of the Service as permitted under this Agreement. You will not disclose Confidential Information during the Term or at any time during the 5 year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Service without the prior written consent of Liquify. You will not misrepresent or embellish the relationship between Liquify and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors).
  15. Non-Competition and Non-Solicitation
    1. Non Competition. During the term of this Agreement and for a period of twelve (12) months thereafter, you agree that you will not, directly or indirectly:
      1. Engage in any business which competes, directly or indirectly, with us; or
      2. Seek, in any way, to undermine our goodwill including, but not limited to, through the solicitation or attempted solicitation of customers, employees or service providers away from us.
  16. Suspension
    1. Generally. We may suspend your right to access your Account or use any portion of the Service immediately upon notice to you if we determine:
      1. your use of or registration for the Service
        1. poses a security risk to the Service or any third party,
        2. may adversely impact the Service or the systems or the content of any other Liquify customer,
        3. may subject us or any third party to liability, or
        4. may be fraudulent;
      2. you are, in breach of this Agreement;
      3. if you are an agent, Liquify, in its sole discretion, determines a history of the posting of Offers that do not comply with the terms of this Agreement;
      4. if you are a buyer, Liquify, in its sole discretion, determines a history of responding to Offers and submitting orders for Products that do not comply with the terms of this Agreement,
      5. Liquify becomes aware that your License has been suspended or revoked,
      6. you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding, or
      7. if you fail to make any payment that you are obligated to make in accordance with the terms of this Agreement.
    2. Effect of Suspension. If we suspend your right to access your Account or use any portion of the Service:
      1. you will not be entitled to any credit of fees paid for any period of suspension;
      2. you remain responsible for all fees and charges you may have incurred through the date of suspension;
      3. if you are an agent, you will remain responsible for fulfilling any orders for Products submitted by buyers and which meet the terms of the related Offer Terms and a Doc 60 or WAOF, as applicable, has been delivered to you prior to the date of the suspension; or
      4. if you are a buyer, you will remain responsible for taking delivery of and paying for any orders for Products placed by you and for which the terms of the related Offer Terms have been satisfied and a Doc 60 or WAOF, as applicable, has been delivered to the agent prior to the date of the suspension. Our right to suspend your Account or use the Products is in addition to our right to terminate this Agreement pursuant to the Section below titled "Term and Termination".
  17. Term and Termination
    1. Term. This Agreement is in effect from the date you accept this Agreement until terminated by either you or Liquify (the "Term").
    2. Termination by You. You may terminate this Agreement at any time by providing thirty (30) days prior written notice to us.
    3. Termination by Liquify. Liquify may terminate this Agreement or any part of it, at any time, effective immediately upon notice to you in the event you breach this Agreement, or otherwise upon thirty (30) days prior written notice to you.
    4. Effect of Termination. Upon termination of this Agreement you acknowledge that all of your rights under this Agreement will immediately terminate and Liquify will cancel any outstanding Offers (if you are an agent) delete your Account and all Your Content. Upon termination:
      1. you will not be entitled to any credit of fees paid;
      2. you remain responsible for all fees and charges you may have incurred through the date of termination;
      3. if you are an agent, you will remain responsible for fulfilling any orders for Products submitted by buyers and which meet the terms of the related Offer Terms and a Doc 60 or WAOF, as applicable, has been delivered to you prior to the date of the termination; or
      4. if you are a buyer, you will remain responsible for taking delivery of and paying for any orders for Products placed by you and for which the terms of the related Offer Terms have been satisfied and a Doc 60 or WAOF, as applicable, has been delivered to the agent prior to the date of the termination.
    5. Surviving Obligations All provisions of this Agreement which by their nature should survive expiration or termination shall survive the expiration or termination of this Agreement, including, without limitation, ownership provisions, warranty disclaimers, confidentiality provisions and limitations of liability. Termination of your access to the Account and use of the Service shall not relieve you of any obligations arising or accruing prior to such expiration or termination or limit any liability which you otherwise may have to Liquify, including without limitation any indemnification obligations hereunder, or to any buyer or agent with whom you have contracted through the Service.
  18. DISCLAIMERS
    1. "AS IS" BASIS. THE SERVICE IS PROVIDED TO YOU "AS IS." ANY USE OF THE PRODUCTS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LIQUIFY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND NON INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. LIQUIFY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE SERVICE WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND LIQUIFY DISCLAIMS ANY LIABILITY RELATING THERETO. LIQUIFY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT USE OR RESULTS OF THE USE OF THE SERVICES ARE OR WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR WITHOUT ERRORS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LIQUIFY OR OTHERS WILL CREATE A WARRANTY AND NEITHER YOU NOR ANY THIRD PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE.
    2. AGENT AND BUYER OFFERS. LIQUIFY IS NOT RESPONSIBLE AND DOES NOT ASSUME ANY LIABILITY FOR ANY CONTENT PROVIDED BY ANY AGENT OR BUYER WHO USES OUR SERVICE.
  19. DISCLAIMERS
    1. LIMITATION OF LIABILITY. IN NO EVENT WILL LIQUIFY BE LIABLE TO YOU FOR INDIRECT, DIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, AGGRAVATED, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) EVEN IF LIQUIFY OR ITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, LIQUIFY WILLNOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICE, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO YOUR ACCOUNT OR THE SERVICE, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE, OR (III) ANY SERVICE SUSPENSION, UNANTICIPATED OR UNSCHEDULES DOWNTIME OF ALL OR A PORTION OF THE SERVICE FOR ANY REASON, INCLUDING BUT NOT LIMITED TO AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE; (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO ACCESS OR STORE ANY OF YOUR SUBMITTED CONTENT OR OTHER CONTENT OR DATA; OR (E) THE CONDUCT OF ANY BUYER OR AGENT IN CONNECTION WITH THEIR USE OF THE SERVICE INCLUDING, BUT NOT LIMITED TO, ANY BREACH OF THE AGREEMENT BETWEEN SUCH BUYER OR AGENT, AS APPLICABLE, AND LIQUIFY WITH RESPECT TO THEIR USE OF THE SERVICE OR THE FAILURE OF ANY AGENT OR BUYER WHO USES THE SERVICE TO COMPLETE THE PURCHASE OR SALE, AS APPLICABLE, OF ANY PRODUCT.
    2. TOTAL LIABILITY IN ANY CASE, OUR TOTAL LIABILITY TO YOU UNDER ANY PROVISION OF THIS AGREEMENT IS LIMITED. LIQUIFY’S LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAID LIQUIFY UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE SIX (6) MONTHS PRECEDING THE CLAIM.
    3. APPLICATION OF LIMITATIONS. THE LIMITATIONS OF LIABILITY AND DAMAGES EXCLUSIONS OF THIS AGREEMENT APPLY TO ALL CAUSES OF ACTION AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.
    4. INDEMNITY. YOU WILL INDEMNIFY AND HOLD LIQUIFY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS AND LICENSORS HARMLESS WITH RESPECT TO ANY SUITS OR CLAIMS ARISING OUT OF (A) YOUR BREACH OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY INFRINGEMENT BY YOU OF THE COPYRIGHT OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY OR YOUR FAILURE TO COMPLETE THE PURCHASE OR SALE, AS APPLICABLE, OF ANY PRODUCT; OR (B) YOUR USE OR MISUSE OF THE ACCOUNT OR THE SERVICE.
  20. General
    1. Third Party Service Providers. You acknowledge that Liquify uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage and related technology required to run the Service.
    2. Notice and Takedown. Liquify supports and respects the intellectual property rights of others and is committed to helping third parties protect their rights. If we reasonably believe any of your Content violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (the "Prohibited Content"), we will notify (our "Notice") you of the Prohibited Content and may request that such content be removed from your Account or Offer or access to it be disabled. If you do not remove or disable access to the Prohibited Content within two (2) business days of our Notice, we may remove or disable access to the Prohibited Content or suspend access to your Account, a specific Offer and/or your use of the Service to the extent that we are not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, we may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Service, pursuant to the U.S. Digital Millennium Copyright Act, or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that we remove content without prior notice, we will provide prompt notice to you unless prohibited by law. For greater clarity, Liquify will remove or disable access to all Prohibited Content as soon as we are made aware of such Prohibited Content, so as to prevent such content from continuing to be accessible or viewable by the public.
    3. Governing Law and Arbitration. This Agreement shall be governed exclusively by the laws of the Province of British Columbia and the federal laws of Canada applicable therein excluding application of any conflict of laws principles.
    4. Equitable Remedies. You acknowledge that the rights granted and obligations made under this Agreement to Liquify are of a unique and irreplaceable nature, the loss of which will irreparably harm Liquify and which cannot be replaced or compensated for by monetary damages alone. Accordingly, Liquify will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Services or any other materials issued in connection therewith or exploitation of the service or other content or material used or accessed through the Service.
    5. No Partnership. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Liquify or its affiliates or the Licensor in any respect whatsoever.
    6. Notices. Liquify may send notices to you with respect to your use of the Service or otherwise under this Agreement by sending an email message to the email address listed in your Account Information. You agree that we may provide notice to you through such means. You may provide notice to Liquify under this Agreement by sending an email message to support[at]Liquify.com. Unless otherwise stated, such notices will become effective immediately upon delivery.
    7. No Waiver. No failure or delay by Liquify or its affiliates in enforcing any right or exercising will be deemed a waiver of any right or remedy.
    8. Force Majeure. Liquify will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labour disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.
    9. Assignment. You may not assign this Agreement or any of your obligations hereunder to any person without the prior written consent of Liquify. Any such assignment or transfer in violation of this Section will be void. Liquify may assign this Agreement or any of our obligations hereunder to any person at any time. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
    10. No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
    11. Severability.. If any provision of this Agreement is unenforceable or invalid for any reason whatever, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining provisions of this Agreement and such provision shall be severable from the remainder of this Agreement.
    12. Entire Agreement. This Agreement represents the complete and exclusive statement of the agreement between you and Liquify and supersedes and replaces any proposal or prior agreement, oral or written, and any other communication between you and Liquify relating to the subject matter of this Agreement.
    13. Electronic Execution and Counterparts. This Agreement may be executed and delivered by electronic or facsimile transmission and in counterparts, each of which will be deemed to be an original and all of which taken together will constitute one and the same instrument.