These Railtown Terms of Service, together with an Order Form (the “Agreement”) govern Customer’s access to and use of the Railtown AI Platform and any services or functionality provided through the Railtown AI Platform. This Agreement forms a binding legal agreement between Railtown AI Technologies Inc. (“Railtown”, “us”, “we”, “our”) and Customer. The term “Customer” refers to the organization that you represent in agreeing to this Agreement. If your account is being set up by someone who is not formally affiliated with an organization, Customer is the individual creating the account. The “Parties” refer to Railtown and Customer and “Party” refers to each of Railtown and Customer.

BY USING THE RAILTOWN AI PLATFORM (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14(k) AND OUR PRIVACY POLICY, AVAILABLE HERE: https://railtown.ai/privacy-policy/. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT OR THE PRIVACY POLICY, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE RAILTOWN AI PLATFORM.

CUSTOMER REPRESENTS AND WARRANTS TO RAILTOWN THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE RAILTOWN AI PLATFORM ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO RAILTOWN THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

1. Agreement

This Agreement is entered into the earlier of: (a) the date Customer first uses any part of the Railtown AI Platform; and (b) the date Customer agrees to be bound by this Agreement (the “Effective Date”). Definitions.

As used in this Agreement, the following capitalized words have the meaning set out below:

(a).“Affiliate” means, with respect to a Party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. 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

(b).“Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority

(c).“Customer Data” means any data, information, content, records, and files that Customer or any of its Permitted Users load or enters into, transmits to, or makes available to the Railtown AI Platform, including but not limited to Personal Information.

(d).“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 having jurisdiction over Railtown, Customer, the Railtown AI Platform, the Customer Data or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by, such entities.

(e).“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.

(f).“Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

(g).“Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.

(h).“Order Form” means Exhibit A, or any additional order form that references this Agreement and that is agreed to by the Parties.

(i).“Permitted User(s)” means those employees and independent contractors authorized by Customer to access and use the Railtown AI Platform on Customer’s behalf.

(j).“Personal Information” means information about an identifiable individual or information.

(k).“Railtown AI Platform” means: (i) software, hardware, systems and services through which Railtown hosts and makes available the Railtown solution for efficient software development as described in an Order Form, including any components comprising thereof or information and data made available thereon; (ii) any Modification of the services referred to in (i); and (iii) the Support Services.

(l).“Website” means any websites used by Railtown to provide the Railtown AI Platform, including the websites located at https://www.railtown.ai, https://conductr.ai/, https://railengine.ai/

2. The Railtown AI Platform

(a).Provisioning of the Railtown AI Platform. Subject to Customer’s compliance with the terms and conditions of this Agreement, Railtown will make the Railtown AI Platform available to Customer on the terms and conditions set out in this Agreement during the Term. Customer is responsible for identifying and authenticating all Permitted Users, for ensuring only Permitted Users access and use the Railtown AI Platform, and for Permitted Users’ compliance with this Agreement.

(b). Conditions of Use. You represent, warrant, and agree that any Permitted Users’ access and use of the Railtown AI Platform shall not:

(a)In any manner violate any applicable federal, provincial, local, or international law or regulation including, without limitation, any laws regarding the export of data or software, patent, trademark, trade secret, copyright, or other intellectual property, legal rights (including the rights of publicity and privacy of others) or contain any material that could give rise to any civil or criminal liability under Applicable Laws or that otherwise may be in conflict with this Agreement and our Privacy Policy found at https://railtown.ai/privacy-policy.

(b)In any manner violate the terms of use of any third-party website that is linked to a Website, including but not limited to, any third-party social media website.

(c)Include or contain any material that is exploitive, obscene, harmful, threatening, abusive, harassing, hateful, defamatory, sexually explicit or pornographic, violent, inflammatory, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or other such legally prohibited ground or be otherwise objectionable, such determination to be made in Railtown’s sole discretion.

(d)Involve attempting to exploit or harm any individual in any way by exposing them to inappropriate content or otherwise or ask for personal information as prohibited under Applicable Laws.

(e)Involve, provide, or contribute any false, inaccurate, or misleading information.

(f)Include sending, knowingly receiving, uploading, downloading, using, or reusing any material that does not comply with this Agreement.

(g)Impersonate or attempt to impersonate Railtown, a Railtown employee or representative, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).

(h)Subject to section 6, transmit, or procure the sending of, any advertisements or promotions, sales, or encourage any other commercial activities, including, without limitation, any “spam”, “junk mail”, “chain letter”, contests, sweepstakes and other sales promotions, barter, or advertising or any other similar solicitation.

(i)Encourage any other conduct that restricts or inhibits anyone’s use or enjoyment of the Railtown AI Platform, or which, as determined by us, may harm Railtown or any user or expose them to liability.

(j)Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, or alarm any other person.

(k)Promote any illegal activity, or advocate, promote, or assist any unlawful act.

(l)Give the impression that they originate from or are endorsed by Railtown or any other person or entity, if this is not the case.

(b).Restrictions on Use. Customer acknowledges and agrees that it is responsible for the compliance by all Permitted Users with this Agreement, any guidelines and policies published by Railtown from time to time, and the activities of all Permitted Users on the Railtown AI Platform. Without limiting the generality of the foregoing, Customer will not itself, and will not permit others to:

(i).sub-license, sell, rent, lend, lease or distribute the Railtown AI Platform or any Intellectual Property Rights therein, or otherwise make the Railtown AI Platform available to the Parties other than Permitted Users;

(ii).use the Railtown AI Platform to permit timesharing, service bureau use or commercially exploit the Railtown AI Platform;

(iii).use, distribute, or access the Railtown AI Platform: (A) in violation of any Applicable Laws or Intellectual Property Right; (B) in a manner that threatens the security or functionality of the Railtown AI Platform; or (C) for any purpose or in any manner not expressly permitted in this Agreement;

(iv).use the Railtown AI Platform to create, collect, transmit, store, use or process any Customer Data:

(A) that Customer does not have the lawful right to create, collect, transmit, store, use or process;

(B) that violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or 

(C) that contains any computer viruses, worms, trojan horses, malicious code, logic bombs, or any other material or software intended to damage or alter a computer system or data

(v).Modify or create derivative works of the Railtown AI Platform;

(vi).attempt to reverse engineer, de-compile or disassemble the Railtown AI Platform;

(vii).remove or obscure any proprietary notices or labels on the Railtown AI Platform, including brand, copyright, trademark and patent pending notices;

(viii).access or use the Railtown AI Platform for the purpose of building a similar or competitive product or service; or

(ix).perform any vulnerability, penetration or similar testing of the Railtown AI Platform.

(c).Suspension of Access; Scheduled Downtime; Modifications. Railtown may, from time to time and in its discretion without limiting any of its other rights or remedies at law or in equity under this Agreement:

(i).suspend or terminate Customer’s access to or use of the Railtown AI Platform:

(A) for scheduled maintenance;

(B) due to a Force Majeure;

(C) if Railtown believes in good faith that Customer or any Permitted User has violated any provision of this Agreement;

(D) to address any emergency security concerns; or

(E) if required to do so by a regulatory body or as a result of a change in Applicable Laws; and

(ii).make any Modifications to the Railtown AI Platform.

Any suspension of the Railtown AI Platform by Railtown in accordance with Section 2(c)(i) will not excuse Customer from any of its obligations to pay Fees to Railtown or any other obligations under this Agreement.

(d).Subcontracting. Railtown may engage third parties to assist it in providing the Railtown AI Platform or any part thereof.

(e). Transmission of Information. The transmission of information via the internet is not completely secure. Although Railtown uses commercially reasonable efforts to protect Customer Data, Railtown does not guarantee the security of any information transmitted to the Website or the Railtown AI Platform. Any transmission of information is at Customer’s own risk. Customer acknowledges and agrees that Railtown will not be liable for any unauthorized access, interception, or loss of data during transmission, regardless of whether such unauthorized access, interception, or loss arises from Customer’s acts or omissions or from the acts or omissions of third parties.

3. Ownership; Reservation of Rights

(a).Except as expressly set forth in this Agreement, nothing in this Agreement assigns or grants to Railtown any right, title or interest including any Intellectual Property Rights in or to Customer Data. Customer grants to Railtown a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, transferable, and fully paid-up right during the Term to access, collect, use, process, store, disclose and transmit Customer Data to: (i) provide the Railtown AI Platform; (ii) improve, enhance, and develop the Railtown AI Platform and Railtown’s other products and services; (iii) train and improve machine learning and artificial intelligence models; and (iv) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). Subject to Applicable Laws, Railtown may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind.

(b).Railtown or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to: (i) the entirety of the Railtown AI Platform; (ii) any information, contents, features, displayers, graphics, presentation, and website layout; (iii) anything used, developed or delivered by or on behalf of Railtown under this Agreement; and (iv) any Modifications to the foregoing.

4. Privacy

(a).Customer understands that Personal Information, including the Personal Information of Permitted Users, will be treated in accordance with Railtown’s privacy policy located at https://railtown.ai/privacy-policy/ (the “Privacy Policy”).

5. Customer User Account; Responsibility for Permitted Users

(a).Upon Customer’s request, Railtown will issue one or more accounts (each, a “Customer User Account”) to Customer for use by Permitted Users). Customer will ensure that each Permitted User only uses the Railtown AI Platform through its assigned Customer User Account. Customer will not allow any Permitted User to share its Customer User Account with any other person. Any username, password, or any other piece of information chosen by Customer, or provided to Customer as part of Railtown’s security procedures, must be treated as confidential, and Customer and Permitted Users must not disclose it to any other person or entity.

(b).Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Railtown AI Platform in compliance with this Agreement. Permitted Users must not provide any other person with access to the Railtown AI Platform or portions of it using the Customer User Account.

(c).Customer will promptly notify Railtown of any actual or suspected unauthorized use of the Railtown AI Platform. Railtown reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.

(d).Customer will ensure that all individual users of the Railtown AI Platform, including Permitted Users, are contractually bound to terms and conditions with Customer that are no less restrictive or protective of Railtown’s rights than those set forth in this Agreement.

6. User Listings

(a).Listing Creation. Subject to Customer’s compliance with this Agreement, Customer may create one or more listings for services offered by Customer (each, a “Listing”) through the Customer User Account. Each Listing may include a description of Customer’s services and a hyperlink to Customer’s external website (a “Customer Website”). By creating a Listing, you declare and warrant that you own or have the necessary rights to do so.

(b).License Grant. Customer grants to Railtown a nonexclusive, worldwide, royalty-free, sublicensable, and fully paid-up right to display, reproduce, modify, distribute, and otherwise use all content included in any Listing, including any service descriptions, logos, trademarks, images, and hyperlinks, for the purpose of operating, promoting, and improving the Railtown AI Platform.

(c).Content Restrictions. Customer represents and warrants that all content included in any Listing: (i) is accurate and not false or misleading; (ii) does not infringe, violate, or misappropriate any Intellectual Property Rights or other rights of any third party; (iii) does not contain any malicious code, viruses, or harmful links; (iv) complies with all Applicable Laws; and (v) does not contain any content that is defamatory, obscene, offensive, or otherwise objectionable (as determined in Railtown’s sole discretion). Customer is solely responsible for all content included in any Listing and for the content, accuracy, and legality of any Customer Website linked therein.

(d).Take-Down Rights. Railtown reserves the right, in its sole discretion and without prior notice to Customer, to remove, modify, or disable any Listing or any content therein, including any hyperlinks to Customer Websites, if Railtown believes in good faith that: (i) the Listing or any content therein violates any provision of this Agreement; (ii) the Listing or any linked Customer Website contains inappropriate, harmful, or illegal content; (iii) the Listing is the subject of a third-party complaint or claim; or (iv) continued display of the Listing could expose Railtown to liability or reputational harm.

(e).Disclaimer of Responsibility. Railtown does not endorse, verify, or assume any responsibility for the accuracy, completeness, or legality of any Listing or any content therein. Railtown is not responsible for: (i) the content, privacy practices, or services of any Customer Website; (ii) any transactions or interactions between Customer and any third party arising from or related to any Listing; or (iii) any loss or damage that may arise from any third party’s use of or reliance on any Listing or Customer Website. Customer acknowledges that any third party’s access to or use of a Customer Website is subject to the terms and conditions of such Customer Website and is solely at such third party’s own risk.

7. Support

(a).Customer will generally have access to Railtown’s technical support for the Railtown AI Platform (“Support Services”): via email at support@railtown.ai.

8. Fees and Payment

(a).Fees.  Customer will pay to Railtown the fees described on the Website (the “Fees”). Customer must provide valid credit card information upon Customer User Account creation. Customer agrees and acknowledges that Railtown may bill its payment method in accordance with this Agreement and the Order Form.

(b).Late Payment. If Customer’s method of payment is declined when Fees are due, Customer must provide updated valid credit card information within five (5) business days. If Customer fails to provide updated payment information for 45 days from the initial billing date, Railtown may suspend Customer’s access to the Railtown AI Platform until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. Customer agrees to pay all costs of collection, including reasonable legal fees, incurred by Railtown in collecting any overdue amounts.

(c).Taxes.  The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes.  Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Railtown.

9. Confidential Information

(a).Definitions.  For the purposes of this 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

(b).Confidentiality Covenants.  Recipient hereby agrees that 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 Railtown AI Platform 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.

(c).Exceptions to Confidentiality.  Notwithstanding Section 9(b), 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; (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; or in the case of Railtown, to potential assignees, acquirers or successors of Railtown if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Railtown.

 

10. Warranty; Disclaimer

a).Provider Warranty. Railtown represents and warrants that it has established and implemented policies, programs and procedures that are commercially reasonable and in accordance with industry practices, including administrative, technical and physical safeguards, to protect the confidentiality, integrity and security of Customer Data in its possession, custody or control against unauthorized access, use, modification, disclosure or other misuse.

(b).Customer Warranty.  Customer represents and warrants to, and covenants with Railtown that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by Applicable Laws, to enable Railtown to provide the Railtown AI Platform, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Railtown and to or from all applicable third parties.

(c).GENERAL DISCLAIMER.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, RAILTOWN DOES NOT WARRANT THAT THE WEBSITE, RAILTOWN AI PLATFORM, ITS SERVICES OR ANY FUNCTIONALITIES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY ERROR CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY RAILTOWN TO CUSTOMER ARE PROVIDED “AS IS”, “WHERE IS”, AND “AS AVAILABLE” AND RAILTOWN DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND THAT ANY DATA, CONTENT OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, FIT FOR A PARTICULAR PURPOSES, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD-PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY.

TO THE EXTENT PERMITTED BY APPLICABLE LAWS, RAILTOWN HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT,  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 FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAWS.

WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES OR DATA AVAILABLE FOR DOWNLOADING FROM THE INTERNET OR THE WEBSITE WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE SOLELY AND ENTIRELY RESPONSIBLE FOR YOUR USE OF THE WEBSITE AND RAILTOWN AI PLATFORM AND YOUR COMPUTER, INTERNET, AND DATA SECURITY. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OVERLOADING, FLOODING, MAILBOMBING, OR CRASHING, VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS FOUND OR ATTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

11. Indemnities

(a).Provider Indemnity.

(i).Railtown 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 final, non-appealable judgment that the Railtown AI Platform infringe any third-party Intellectual Property Right in Canada or the United States The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any Railtown AI Platform into, or any combination, operation, or use of any Railtown AI Platform with, any products or services not expressly provided or authorized by Railtown in writing, unless such infringement would also have resulted solely from the use of the Railtown AI Platform without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of any Railtown AI Platform other than by Railtown or with Railtown’s express written approval; (C) Customer Data or any Customer-provided content; (D) Customer’s use of the Railtown AI Platform in violation of this Agreement or Applicable Laws; (E) unauthorized use of the Railtown AI Platform; or (F) Customer’s failure to use the most current version of the Railtown AI Platform made available by Railtown, if such infringement would have been avoided by use of the current version.

(ii).If any portion of the Websites or the Railtown AI Platform is, or in Railtown’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 a portion of the Railtown AI Platform is enjoined or threatened to be enjoined, Railtown may, at its option and sole cost and expense:

(A)obtain the right for Customer to continue to use the affected Railtown AI Platform materially as contemplated by this Agreement;

(B)modify or replace Railtown AI Platform, in whole or in part, to seek to make the Railtown AI Platform (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Railtown AI Platform under this Agreement; or

(C)if Railtown determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate the Railtown AI Platform, in whole or in part, and require Customer to immediately cease all use of the terminated Railtown AI Platform or part or feature thereof and refund any unused prepaid Fees for the terminated Railtown AI Platform, if applicable.

(b).Customer Indemnity. Customer will defend, indemnify and hold harmless Railtown, and its officers, directors, employees, agents, Affiliates, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by a Provider Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise from or relate to: (i) Customer Data, including any claim that Customer Data infringes, violates, or misappropriates any third-party Intellectual Property Right or other right, or that Customer Data violates any Applicable Law; (ii) any Listing or Customer Website; (iii) Customer’s breach of this Agreement or any representation or warranty herein; (iv) Customer’s violation of Applicable Laws; (v) any allegation that Customer’s use of the Railtown AI Platform infringes, violates, or misappropriates any third-party right; or (vi) unauthorized or improper use of the Railtown AI Platform by Customer or any Permitted User.

(c).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 11; provided that failure to provide such notice will not relieve the Indemnitor of its indemnity obligations except to the extent the Indemnitor is materially prejudiced by such lack of notice. 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 Indemnitor will not settle, compromise, or consent to the entry of any judgment in any Action without the Indemnitee’s prior written consent if such settlement (i) does not include an unconditional release of the Indemnitee from all liability, (ii) imposes any liability, obligation, or admission of fault on the Indemnitee, or (iii) includes non-monetary relief that would affect the Indemnitee’s business or operations. Indemnitee’s failure to perform any obligations under this Section 11(c) will not relieve the Indemnitor of its indemnity obligations under this Section 11 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.

12. Limitation of Liabilities

(a).AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF RAILTOWN IN CONNECTION WITH OR UNDER THIS AGREEMENT OR THE RAILTOWN AI PLATFORM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE RAILTOWN AI PLATFORM IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL RAILTOWN’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

(b).TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL RAILTOWN BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

 

13. Term and Termination

(a).Term.  This Agreement will commence on the Effective Date and continue to be in effect until terminated in accordance with its terms (the “Term”).

(b).Termination for Convenience. Either Party may terminate this Agreement at any time by providing at least 30 days’ advance written notice to the other Party. Upon termination for convenience by Customer, Customer will not be entitled to any refund of prepaid Fees.

(c).Termination for Cause.  Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. 

(d).Transition.  Upon termination of this Agreement for any reason, Customer will immediately cease accessing or using the Railtown AI Platform and all licenses granted hereunder will immediately terminate. Within thirty (30) calendar days following termination and upon Customer’s written request made within ten (10) business days of termination, Railtown will return to Customer or delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by Railtown to provide the Railtown AI Platform, except for (i) Aggregated Data, (ii) Customer Data incorporated into trained machine learning or artificial intelligence models, and (iii) Customer Data retained as required by Applicable Laws. If Customer does not make such a request within ten (10) business days, Railtown may delete Customer Data without further obligation. Please submit any other data deletions requests to support@railtown.ai.

(e).Survival. The following Sections, together with any other provision of this Agreement which expressly 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 8 (Fees and Payment), Section 9 (Confidential Information), Section 10(c) (Disclaimer), Section 11 (Indemnity), Section 12 (Limitation of Liabilities), Section 13(e) (Survival), and Section 14 (General Provisions).

14. General Provisions

(a).Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent:

(i).if to Railtown, to the following address:

‍Railtown AI Technologies Inc.

Unit 104, 8337 Eastlake Drive

Burnaby, BC V5A 4W2

Attention: Marwan Haddad

Email: support@railtown.ai, and

(ii).if to Customer, to the current postal or email address that Railtown has on file with respect to Customer. 

Railtown 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 Railtown current at all times during the Term.

(b).Assignment. Customer will not assign this Agreement to any third party without Railtown’s prior written consent. Railtown may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent, including in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Railtown’s assets. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.

(c).Third-Party Services. For your convenience, Railtown may provide links or access to third-party services or websites. Railtown makes no representations, warranties, or conditions about any such other services or websites. Railtown does not control or endorse these third parties and is not responsible for their content, privacy practices, or services and accepts no responsibility for the foregoing, or for any loss or damage that may arise from your use of them. You are subject to any terms and conditions of such third-party services or websites.

(c).Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, Railtown may: (i) commence lawsuits to collect unpaid fees from Customer; and (ii) seek injunctive relief with respect to a violation of Railtown’s Intellectual Property Rights; in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

(d).Export Restrictions. Customer agrees not to directly or indirectly export or re-export any of the Railtown AI Platform without first obtaining all required licenses, permits and permissions required under Applicable Laws. Railtown makes no representation or warranty that the Railtown AI Platform may be exported without Customer first obtaining appropriate licenses or permits under Applicable Laws, or that any such license or permit has been, will be, or can be obtained.

(e).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.

(f).Force Majeure.  Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).

(g).Severability.  Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

 (h).Waiver.  A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

 (i).Independent Contractors.  Railtown’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.

 (j).Entire Agreement.  This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.

 (k).Amendments.  Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, RAILTOWN MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY RAILTOWN, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE THIRTY DAYS AFTER THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS EARLIER). YOU MAY REFUSE ANY AMENDMENT BY NOTIFYING US WITHIN THIRTY DAYS AFTER SUCH AMENDMENT COMES INTO FORCE. 

 

 (l).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.