Terms of Use PART 2

Updated: JANUARY 2024

9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES (AND ANY RELATED CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY CONTENT PROVIDED BY OUTSIDE CONTRIBUTORS) IS SOLELY AND ENTIRELY AT YOUR OWN RISK AND THAT THE SERVICES (AND ANY RELATED CONTENT) ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” WITHOUT REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND PROVIDES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND THAT THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULT (INCLUDING, BUT NOT LIMITED TO, ANY INVESTMENT RESULTS, PROFITS, LOSSES, RETURNS, PERFORMANCE OR OTHER OUTCOMES), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE COMPLETE, ADEQUATE, TIMELY, ACCURATE, ERROR FREE, SECURE OR FREE OF VIRUSES, WORMS, MALICIOUS CODE, TROJAN HORSES, MALWARE OR OTHER HARMFUL COMPONENTS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, HX RESEARCH, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, OUTSIDE CONTRIBUTORS, THIRD-PARTY PROVIDERS, CONTRACTORS, SUPPLIERS, LICENSORS, ADVERTISERS AND AGENTS (COLLECTIVELY, THE “HX RESEARCH ENTITIES”) EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.

THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THE SERVICES.

10. LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT THE HX RESEARCH ENTITIES ARE NOT RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, EQUITY OR OTHER LEGAL THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, YOUR ACCESS TO OR USE OF THE SERVICES AND/OR ANY CONTENT CONTAINED THEREIN, INCLUDING, BUT NOT LIMITED TO, ANY CONTENT PROVIDED BY OUTSIDE CONTRIBUTORS, FOR ANY LOST PROFITS, DIMINUTION OF VALUE, LOSS OF USE OR OTHER ECONOMIC ADVANTAGE OR LOSS OF DATA, WHETHER SUCH DAMAGE IS FORESEEABLE OR NOT AND WHETHER OR NOT THE HX RESEARCH ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FOR AVOIDANCE OF DOUBT, DAMAGES ARISING UNDER THE SECTION ENTITLED “INDEMNIFICATION” (INCLUDING, BUT NOT LIMITED TO, DAMAGES TO WHICH A PARTY IS ENTITLED TO INDEMNIFICATION UNDER SUCH SECTION THAT SUCH PARTY SUFFERS IN CONNECTION WITH THIRD-PARTY CLAIMS FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES) ARE DEEMED TO BE DIRECT DAMAGES OF THE INDEMNIFIED PARTY. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING IT. YOU AGREE THAT, WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL HX RESEARCH’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION — WHETHER IN CONTRACT, EQUITY, TORT OR OTHERWISE — EXCEED THE TOTAL AMOUNT YOU PAID TO US FOR ACCESS TO AND USE OF THE APPLICABLE SERVICE OR CONTENT DURING THE CURRENT CALENDAR YEAR OF YOUR SUBSCRIPTION TERM IN RESPECT OF SUCH SERVICE OR CONTENT.

The commencement of any action or proceeding on any claim regarding the Services must be brought by you within one (1) year from when the claim arose. The foregoing limitation shall not apply to actions brought against you for indemnification.

11. INDEMNIFICATION

You agree to indemnify, defend and hold harmless the HX Research Entities, their current and former officers, directors, employees, agents and representatives and their successors and assignees from and against any and all liabilities, claims (including, but not limited to, third-party claims), damages, losses, costs (including reasonable attorneys’ fees), or other expenses associated with or incurred as a result of or from:

Your breach of your warranties, representations and obligations under this Agreement;

Your failure to perform in accordance with this Agreement;

Your use of the Services in any way other than its normal way or in a way not required or recommended by us;

Your violation of the rights of any third party;

Your registration or use of a User Account; or

the actual or alleged infringement of any third-party proprietary or intellectual property right arising out of the unauthorized use of the Services.

If any Service which is subject to this indemnity is claimed, alleged or determined to infringe a patent issued to, or a copyright registered by, or either owned by or licensed to, any third party, HX Research shall have the right and option to modify the Services to avoid such infringement. If, in our sole opinion, such modification cannot practicably be accomplished to avoid such infringement, we shall have the right to terminate this Agreement without liability on the part of any HX Research Entity to you. In the event your purchase of a Premium Service is terminated under this paragraph, we will refund to you the full price for any unused portion of such Premium Service. In such an event, HX Research shall have the right in our sole discretion to elect to defend against or to settle any such third-party claim or third-party suit. You shall, at HX Research’s request, but at our expense, cooperate with us and provide assistance and information with respect to any such claim or suit. We shall have the right to select counsel, at our expense, to defend against any such claim or suit. If you shall also elect to be represented by your chosen counsel, you shall pay the fees and expense of such counsel. You must receive HX Research’s prior written consent regarding, and in advance of, any related settlement.

This defense and indemnification obligation shall survive this Agreement and your use of the Services.

12. TERMINATION

A. GENERAL

Without limiting the foregoing, HX Research may terminate this Agreement immediately for any or no reason whatsoever and with or without notice to you (including by terminating your User Account, Credentials and/or access to any Service) if: (i) HX Research believes in its sole discretion that the Services are being used in violation of this Agreement or applicable law; (ii) HX Research believes in its sole discretion that your use of any Service interferes with the normal operations of the Service or creates any threat to the security of the Service, Platform, or the Content of any other User of the Service; (iii) HX Research becomes aware of what it, in its sole discretion, deems a credible claim that the Service or any portion thereof infringes upon, misappropriates or violates any of the HX Research Intellectual Property Rights or the intellectual property rights of a third party; (iv) HX Research is required to do so by applicable law; (v) in the case of Free Services, HX Research reserves the right to terminate User Accounts related to Free Services that remain idle for a period of thirty (30) days or more; or (vi) in the event you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any Fees payable to HX Research. If you have questions about a payment made to us, contact us by email at [email protected] before filing a chargeback. HX Research reserves our right to dispute any chargeback. For the avoidance of doubt, if you purchase Premium Services which are sold together as a solution or bundled package of Services, any termination relating to any one Service or bundled package will terminate all Services included in such solution or bundled package, provided, however, that we may, in our sole discretion and subject to your agreement to be bound by this Agreement and to pay the applicable Fees, allow you to convert certain Services included in the bundled Services to stand-alone Services.

Without limiting Section 7(C), you may terminate the Agreement at any time, except that such termination does not relieve you from your obligation to pay any Fees for Premium Services for the remainder of the applicable Term.

B. EFFECT OF TERMINATION

Upon the effective date of termination, HX Research will no longer provide the Services to you, any licenses granted to you will immediately terminate, and you must cease using such Services immediately, and all rights and obligations of the parties hereunder shall terminate, except that Sections 2, 3, 4, 5.B, 8, 9, 10, 11, 12, 13, 14 and 16, as well as any right or obligation in the Agreement, which, by its express terms or nature and context is intended to survive expiration or termination of this Agreement, shall survive expiration or termination of this Agreement.

User agrees that if their User Account is so terminated pursuant to Sections 12(A)(i)-(iii), the User will not attempt to establish a new User Account or otherwise engage in infringing our copyrights or other intellectual property rights under any name, real or assumed.

In order to comply with applicable law or other recordkeeping practices in the ordinary course of our business, or to otherwise enforce our rights under this Agreement, we may retain indefinitely for our records a copy of any and all User Data. We are not responsible for maintaining any records on your behalf.

13. THIRD-PARTY PROVIDERS & THIRD-PARTY SITES

HX Research may retain affiliates and/or other third-party service providers to assist or support us in providing the Services (including, but not limited to, any security, technology, support, legal, compliance, administrative or similar function), and to assist with marketing and business development (including, but not limited to any merchandise referral programs) (each a “Third-Party Provider”).

The Services and/or the Content may contain links to third-party websites, advertisers, products, content, information, services or other events or activities that are not owned or controlled by HX Research (collectively, “Third-Party Sites”). We do not endorse or assume any responsibility for your access or use of any such Third-Party Site. If you access a Third-Party Site via a link on the Platform, the inclusion of any link to a Third-Party Site on the Platform does not imply that we endorse such Third-Party Site, and your access and/or use of the link and the Third-Party Site is done at your own risk. A Third-Party Site may have its own service agreement or other related terms and conditions, and it is solely your obligation to review, accept and abide by those service agreements or other related terms and conditions. You expressly agree that HX Research is not responsible or liable in any way for (i) the availability or accuracy of any such Third-Party Sites or (ii) the content, terms and conditions, policies, advertising, practices or products of any such Third-Party Sites. Additionally, your dealings with or participation in the promotions of any advertisers found on the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that HX Research shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

Without limitation to any of the foregoing paragraphs under this section 13, you acknowledge that certain portions of the Content or features of the Service are owned by a Third-Party Provider (such Content or features, “Third-Party Materials”), and not HX Research, and are provided to you (as expressly described under this Agreement) on license terms and conditions that are in addition to and/or different from those contained in this Agreement or a Specific Terms of Service. Such Content or features may be provided under, and be subject to, the following third-party licenses:

If you do not agree to any of the foregoing licenses in respect of any such Third-Party Materials, you must not use and/or access any such Third-Party Materials.

14. GOVERNING LAW; VENUE

This Agreement is governed under the laws of the Province of Ontario and the federal laws of Canada applicable therein, and you agree that any judicial proceeding, suit or other action relating to or arising under this Agreement, the Services or a breach of any User’s User Data, will be commenced only in a court of competent jurisdiction located in the City of Toronto, in the Province of Ontario. You consent to the personal and exclusive jurisdiction of such court and waive the right to challenge the jurisdiction of such court on grounds of lack of personal jurisdiction or forum non conveniens, or to otherwise seek a change of venue. You agree to waive the right to trial by jury in any action that takes place relating to or arising under this Agreement or the Services. You also agree to waive the right to file a class action claim relating to or arising under this Agreement or the Services.

In the event you bring a claim against HX Research in a foreign jurisdiction (a court other than in Toronto, Ontario), HX Research will move the court to dismiss such claim per your acceptance of this Agreement existing at the time of your purchase of, use of, or access to the Services and your continued use of the Services as evidence of acceptance of the Agreement and this Section.

The parties agree that the foregoing obligation is independent from all other obligations herein. You acknowledge that, in the event you commence a judicial proceeding in any court other than the courts in Toronto, Ontario as described herein, HX Research may incur costs and expenses, including attorneys’ fees, to enforce this provision. You expressly agree that you will reimburse HX Research for any such costs and expenses, including, but not limited to, attorneys’ fees incurred by us within ten (10) days of receiving a written demand from us for such reimbursement. You further agree that if you do not timely reimburse HX Research as previously described in this Section, you will be responsible for, and agree to pay, all costs and expenses, including, but not limited to, attorneys’ fees incurred by us in seeking to collect or recover from you the amount subject to reimbursement.

15. ADDITIONAL TERMS FOR SERVICES PROVIDED THROUGH A WEB OR MOBILE APP

With respect to any Services provided through a web or mobile app (an “App”), we grant you a limited, terminable, non-exclusive license to download and install a single copy of the App solely on your own computer or mobile device, for use solely to connect to and use the Services as permitted under this Agreement. This license is not transferable to any third party. On termination of this Agreement for any reason, including in the event you close your User Account, you will delete any downloaded or installed copies of the App.

You acknowledge that this Agreement is between HX Research and you, and not with the owner or operator of any app store through which the App is distributed (the “App Store Provider”). In addition to the terms of this Agreement, your use of the App and any Services provided through the App will be subject to the terms of any user agreement associated with the App Store Provider or other venue through which you downloaded or obtained the App.

Without limiting this Agreement: (a) HX Research is solely responsible for providing any maintenance and support services with respect to the Platform as provided in this Agreement or under applicable law, and the App Store Provider has no obligation whatsoever to furnish any maintenance and support services with respect to the App or the associated Services; and (b) the App Store Provider is not responsible for any product warranties for the App or the Services.

HX Research and you acknowledge and agree that the App Store Provider is a third-party beneficiary of the provision of this Section and other provisions this Agreement applicable to the App Store Provider hereunder and upon your acceptance of the terms and conditions of this Agreement, the App Store Provider will have the right (and will be deemed to have accepted the right) to enforce such provisions of this Agreement against you as a third-party beneficiary thereof.

16. MISCELLANOUS

A. WAIVER

No waiver of any provision of this Agreement is effective unless it is in writing and signed by an authorized representative of HX Research. Our remedies under this Agreement are cumulative and not alternative, and the election of one remedy for a breach does not preclude the pursuit of other remedies. The failure of HX Research to require your performance of any Agreement provision does not affect the full right to require such performance at any time in the future. The waiver by HX Research of any rights arising out of any breach of any Agreement provision shall not be taken or held to be a waiver of the provision itself. Any failure by HX Research to enforce any of its rights under this Agreement or any applicable laws does not constitute a waiver of such right.

No party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an authorized representative and (ii) in an explicit written waiver. No waiver of any rights arising out of a breach of this Agreement will constitute a waiver of rights relating to any prior or subsequent breach of this Agreement.

B. SEVERABILITY

If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law. This Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible, consistent with applicable law and consistent with the original intention of the parties, and the remaining terms and provisions will remain in full force and effect.

C. FORCE MAJEURE

Under no circumstances shall HX Research be held liable for any cessation, interruption, delay or failure in performance of the Services or any obligations under this Agreement resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, but not limited to, Internet failures, computer equipment failures, telecommunication equipment failures, failures of internet service providers (ISPs) or cloud-hosting providers, other equipment failures, electrical power failures, strikes, labor disputes, lockouts or boycotts, riots, terrorism, insurrections, civil disturbances, shortages of labor or materials, viral pandemics, hurricanes, earthquakes, fire, floods, storms, natural disaster, explosions, acts of God, armed conflict, war, governmental actions, orders of domestic or foreign courts or tribunals.

D. ENTIRE AGREEMENT

This Agreement, as well as any additional HX Research agreements, terms and conditions, rules, policies and agreements (including the Privacy Policy), together with all modifications thereto, constitute the entire agreement between you and HX Research concerning your use of the Services and any other subject matter related to this Agreement. This Agreement supersedes and governs all prior proposals, agreements or other communications between you and HX Research (including, but not limited to, any prior versions of this Agreement). You may not waive, modify or supplement this Agreement, in whole or in part, except by written permission or amendment by HX Research.

E. TITLES AND HEADINGS; INTERPRETATION

The titles and headings of this Agreement are inserted for ease of reference only and do not affect in any way the meaning or interpretation of this Agreement. Also, in all references herein to any parties, persons, entities or corporations, the use of any particular gender or the plural or singular number is intended to include the appropriate gender and number as the text of this Agreement may require.

F. ASSIGNMENT

You may not assign or transfer, either directly or through a third party, this Agreement or any of its interests, rights or obligations hereunder, without the prior written consent of HX Research. Any attempted assignment in violation of the foregoing provision will be null and void and of no force or effect whatsoever. We may assign our rights and obligations under this Agreement and may engage subcontractors or agents in performing our duties and exercising our rights hereunder, without notice to you or your consent. Where applicable, this Agreement is binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

G. AGENCY

This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between you and HX Research. No party has the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever. The relationship between you and HX Research is limited to the responsibilities and obligations of both parties as established in this entire Agreement.

H. NO THIRD-PARTY BENEFICIARIES

Except a set out in Section 15, you acknowledge and agree that nothing herein, express or implied, is intended to nor is to be construed to confer upon or give to any person, other than you, any interests, rights, remedies or other benefits conveyed to you herein.

I. ACCESS TO THE SERVICE FROM OTHER LOCATIONS

The Services are directed solely to individuals and entities residing in the United States and Canada. We make no representation that materials provided through the Services are appropriate or available for use in other locations. Those who choose to access the Services from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. We reserve the right to limit the availability of the Services to any person, geographic area, or jurisdiction we so desire, at any time and in our sole discretion, and to limit the quantities of any such service that we provide.

J. NOTICE

HX Research may provide notifications, whether such notifications are required by law or are for marketing, to disclose changes or additions to our Services, or for other business-related purposes, to you via email associated with your User Account, written or hard copy notice, or through conspicuous posting of such notice on our Services. We reserve the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in this Agreement. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to any email address you provide us.

All mail notices from HX Research to you are deemed effective when: (i) sent by certified mail, return receipt requested or by Federal Express or other recognized overnight delivery service to your last known mailing address; (ii) sent via email to the email address associated with your User Account; or (iii) posted on the login page of the Website and/or any of the applicable pages linked thereto and immediately after you login to the Website. When you provide contact information to HX Research, you agree that we may use this information to contact you in any format or manner we choose and that we may rely on contact information provided by you to us. HX Research may, but has no obligation to, send a single notice by various means of delivery (e.g., email, certified mail or express mail). In no event shall HX Research be liable to you for choosing to send notice in one manner or format over another

You shall give notice to HX Research by contacting [email protected].