View the General Terms of Service for tugo.com
1.1 In this PE Agreement, the following terms have the following meanings:
1.1.1 “Agreement” means the General Terms of Use for the www.tugo.com Website, as per Section 2.1
1.1.2 “Content” means any information, documents, data, text, code, software, audio/sound, photographs, images, illustrations, graphics, video, messages, communications or other materials.
1.1.3 “Customer” means the person or individual who is using or requesting the services of the User in order to: obtain quotes or information about TuGo Products; purchase TuGo Products or a renewal or extension thereof; update Customer Information; submit a claim; and/or use any other service or functionality that may be available to the User from time to time on the Partner Platform or the PE.
1.1.4 “Customer Information” means information which is provided by the Customer to the User (including, without limitation the Customer’s credit card information which may be submitted in order to process the Customer’s payment for any TuGo Products), which the User submits, provides, inputs, contributes, posts, publishes, uploads, disseminates or transmits in the User’s use of the PE.
1.1.5 “Licensed Partner” means a Partner that is a Licensee.
1.1.6 “Licensee” means a person who is licensed and permitted to sell the type of insurance products and services which are developed, marketed, sold and distributed by the TuGo Group.
1.1.7 “Non-licensed Partner” means a Partner that is not a Licensee.
1.1.8 “Other Agreements” has the meaning set out in Section 4.2.
1.1.9 “Partner” means a person who has entered into an agreement with the TuGo Group to promote and market the TuGo Products and/or refer customers to the TuGo Group, and in the case of Licensed Partners, to sell and distribute the TuGo Products to customers.
1.1.10 “Partner Platform” means the partner platform developed, owned, maintained, administered and made available by the TuGo Group, which is an online portal which serves as an online access point for Partners to access and use various tools and services, including the PE and the PE Tools to conduct Promotional Activities. For further clarity, the Partner Platform includes the PE and PE Tools.
1.1.11 “Partner Platform Agreement” means the agreement or terms of service governing the Partner Platform as may be established by the TuGo Group from time to time.
1.1.12 “PE” means the partner express website developed, owned, maintained, administered and made available by the TuGo Group, which is an online portal which serves as an online access point for Partners to access and use the PE Tools to conduct Promotional Activities, including selling TuGo Products to customers. For further clarity, the PE forms part of the Partner Platform and is accessed through the Partner Platform.
1.1.13 “PE Tools” means the tools and services developed, owned, maintained, administered and made available by the TuGo Group on the PE for Partners to use in conducting Promotional Activities and includes, without limitation, the TuGo Group’s services in operating, maintaining and administering the PE, its functions, and all other services and functionality connected to the PE and making the PE available to the User.
1.1.14 “Promotional Activities” means a Partner’s activities in promoting, marketing, selling or distributing TuGo Products to customers, or referring customers to the TuGo Group to purchase or make use of TuGo Products, and/or assisting Customers in submitting and managing claims in relation to TuGo Products.
1.1.15 “Services” means the TuGo Group’s services in developing, operating, maintaining and administering the Partner Platform and the PE, and making the Partner Platform and the PE available to the User.
1.1.16 “TuGo” means the B.C. company, North American Air Travel Insurance Agents Ltd., doing business as “Travel Underwriters™”, “TuGo®” and/or “TUGO®”.
1.1.17 “TuGo Group” means TuGo and its successors, assigns, directors, officers, employees, and related corporations, including any parent, affiliate or subsidiary.
1.1.18 “TuGo Intellectual Property” means all of the TuGo Group’s intellectual property and intellectual property rights, including, without limitation, all of the TuGo Group’s copyrights, patents, trademarks, service marks, trade names, and logos, whether registered or not, including any applications with respect thereto, as they may relate to, appear on, or be incorporated or used in or for, the PE or any part thereof. For further clarity, TuGo Intellectual Property includes, without limitation, the Partner Platform, the PE, and all of the TuGo Group’s Content appearing on, or incorporated into the Partner Platform, the PE, or any part thereof.
1.1.19 “TuGo Policies” means any rules or policies that the TuGo Group may establish from time to time, in its sole discretion regarding the use of the PE by Partners. The TuGo Policies include, without limitation, any general terms of use, acceptable use agreement, and privacy policy that may be in effect from time to time applicable to the Partner Platform and the PE.
1.1.20 “TuGo Products” means the travel and/or insurance related products and services which are marketed, sold and distributed by the TuGo Group from time to time.
1.1.21 “User” means the Partner who is using the PE under this PE Agreement, and that Partner’s successors, permitted assigns (as such assignment may be permitted hereunder), directors, officers, employees, and related corporations, including any parent, affiliate or subsidiary, who use the PE. For further clarity, “User” includes reference to any “User Delegate.”
1.1.22 “User Content” means Content which is not developed, created or provided by the TuGo Group, which the User submits, provides, inputs, contributes, posts, publishes, uploads, disseminates or transmits in the User’s use of the PE. For further clarity, User Content includes Customer Information.
1.1.23 “User Delegate” means a User who is a director, officer, employee, or agent of a Partner who is also a User, where the User Delegate has access to and uses the Partner Platform in his/her capacity as a director, officer, employee, or agent of the Partner, by virtue of the relationship between the Partner and the TuGo Group, and/or because the Partner has allowed the User Delegate to access and use the Partner Platform using the Partner’s account.
1.1.24 “Website” means the www.tugo.com website, as per Section 2.1.
2.1 The PE is accessible by and part of the www.tugo.com website (the“Website”), and by using the PE or any portion thereof, regardless of how the User accesses the PE, the User agrees to comply with the General Terms of Use for the Website (the“Agreement”) https://www.tugo.com/en/terms/, the Partner Platform Agreement, this PE Agreement, and all applicable laws and regulations.
2.2 All capitalized terms herein have the same meanings as defined in the Agreement, unless otherwise defined herein.
2.3 The TuGo Group will provide the PE and allow the User to use the PE only on the terms and conditions set out in the Agreement, the Partner Platform Agreement, this PE Agreement, and in any TuGo Policies (provided that the TuGo Group gives notice to the User of the TuGo Policies by posting notice of the TuGo Policies on the PE or by such other means as the TuGo Group may determine).
2.4 By using the PE, the User accepts and agrees to comply with and be bound by:
2.4.1 the terms and conditions set out in the Agreement, the Partner Platform Agreement, this PE Agreement, or any of the TuGo Policies (provided that the TuGo Group gives notice to the User of the TuGo Policies by posting notice of the TuGo Policies on the PE or by such other means as the TuGo Group may determine);
2.4.2 any existing agreement between the TuGo Group and the Partner governing the Partner’s conduct of Promotional Activities; and
2.4.3 all applicable laws and regulations relating to the User’s use of the PE.
2.5 If the User does not agree to comply with and be bound by all of the terms and conditions set out in the Agreement, the Partner Platform Agreement, this PE Agreement, or any TuGo Policies, the User shall immediately cease accessing or using the PE.
3.1 The TuGo Group reserves the right to amend the terms and conditions of the Partner Platform Agreement and this PE Agreement at any time and at its sole discretion, without advance notice to the User. The TuGo Group will give notice to the User of any amendments to the Partner Platform Agreement and this PE Agreement by posting notice of such amendments on the Partner Platform or the PE or by such other means as the TuGo Group may determine in its sole discretion.
3.2 By continuing to use the PE, the User agrees to comply with and be bound by the amended Partner Platform Agreement and/or PE Agreement, as the case may be, and the User is agreeing to be bound by the then-current version of the Partner Platform Agreement or this PE Agreement, as amended, and any other agreements that may exist between the User and the TuGo Group governing the User’s access and use of the PE or any portion thereof.
4.1 The Agreement, the Partner Platform Agreement, and this PE Agreement constitute the entire and only agreement between the TuGo Group and the User regarding the User’s use of the PE, and supersede all prior or contemporaneous agreements, representations, warranties and understandings with respect to the PE and the subject matter of this PE Agreement. The Agreement, the Partner Platform Agreement, this PE Agreement, and the TuGo Policies must be read and construed together and the obligations within all such agreements are cumulative. While the terms and conditions of the TuGo Policies continue to bind the User, to the extent that any TuGo Policies, any provisions of the Agreement or the Partner Platform Agreement, or anything in or associated with the PE conflicts or is inconsistent with this PE Agreement, this PE Agreement shall take precedence.
4.2 For further clarity, whereas the User may have entered into other agreements with the TuGo Group which do not deal directly with the User’s use of the PE (the “Other Agreements”), those Other Agreements continue to apply in accordance with their terms, and nothing herein derogates from the obligations in the Other Agreements, and the obligations in such Other Agreements survive and do not merge with the obligations in this PE Agreement. Where there is direct conflict between the terms of this PE Agreement and those Other Agreements, the terms of those Other Agreements shall govern, but only to the extent of the direct conflict.
5.1 The operation, form and Content of the PE may be determined and modified by the TuGo Group from time to time, in its sole discretion.
5.2 The TuGo Group may develop, operate, maintain, administer, modify and discontinue providing the PE or any portion thereof in the manner that the TuGo Group sees fit, from time to time, in its sole discretion, without advance notice to the User. The TuGo Group shall not be liable to the User or any third party if the TuGo Group exercises its rights hereunder.
5.3 The User acknowledges and agrees that the TuGo Group may, in its sole discretion, determine which parts or sections of the PE that the TuGo Group offers or makes available to the User.
5.4 The User acknowledges and agrees that the TuGo Group may determine, in its sole discretion, that the PE (or portions thereof) will only be offered or made available to certain Licensed Partners, and the TuGo Group may determine, in its sole discretion, that the PE (or portions thereof) will not be offered or made available to Non-licensed Partners.
6.1 In order to access the PE, the User will have to create or activate an account, login and password and provide the information required by the TuGo Group. The TuGo Group may provide access to the PE through the Partner Platform, such that the account, login and password required to access the PE is administered through the Partner Platform.
6.2 The User must provide current, accurate and complete information to the TuGo Group when creating, activating or modifying its account, login and password and in using the PE. The User must, at all times, keep the TuGo Group apprised of the User’s current contact information.
6.3 The TuGo Group may, in its sole discretion, determine whether to approve the creation, activation or modification of the User’s account.
6.4 The User is solely responsible for the User’s account, the security of the User’s login and password, and all activity that occurs on the User’s account.
6.5 The User shall keep its password secure and shall not disclose its password to any third parties.
6.6 The User shall notify the TuGo Group immediately of any unauthorized use of the User’s account, login or password, or any other breach of security that the User becomes aware of.
6.7 The User shall not use any other Partner’s account, login or password.
6.8 The TuGo Group shall not be liable for any losses or liabilities caused by any unauthorized use of the User’s account, login or password and the User shall be liable for and indemnify and save harmless the TuGo Group from and against any losses or liabilities arising from any unauthorized use of the User’s account, login or password.
6.9 The TuGo Group reserves the right to deactivate or disable the User’s account, login or password if the User’s account, login or password has not been used or has been inactive for over twelve (12) consecutive months.
7.1 General Obligations
7.1.1 The User shall, at its expense
7.1.1.1 comply with all of its obligations under the Agreement, the Partner Platform Agreement, and this PE Agreement in the User’s use of the PE and the User shall be solely responsible for its use of the PE and all of the User Content.
7.1.1.2 ensure that any of its User Delegates comply with all obligations of a User under the Agreement, the Partner Platform Agreement, and this PE Agreement in using the PE and the User shall be responsible for the use of the PE by its User Delegates. For further clarity, if a User is a Partner, then the Partner who is a User shall ensure that its User Delegates comply with all of the obligations of a User under the Agreement, the Partner Platform Agreement and this PE Agreement, and the Partner shall, at all times, be solely responsible for any and all actions and conduct of its User Delegates and any other persons who the Partner permits to access and use the PE using the account of the Partner or the Partner’s User Delegates.
7.1.2 Where a User is a Partner, the Partner who is a User is responsible for:
7.1.2.1 determining which of its User Delegates have access to which portions of the Partner Platform and/or the PE;
7.1.2.2 ensuring that its User Delegates only access the portions of the Partner Platform and/or PE permitted by the Partner.
7.1.3 The User shall provide and remain responsible for all equipment, systems and internet access necessary to access and use the PE.
7.1.4 The User remains responsible for the development, operation and maintenance of User’s own websites and all Content thereon and the User shall ensure that the User’s own websites are reputable and comply with all applicable laws or regulations (including, without limitation, all applicable privacy and anti-spam laws and regulations) and do not contain false or deceptive advertising or any machine readable code including, without limitation, any virus, Trojan horse, or other self-executing program.
7.1.5 The User shall ensure that the User and the User’s uses of the PE:
7.1.5.1 comply with the Agreement, the Partner Platform Agreement, this PE Agreement, the TuGo Policies, and all applicable laws or regulations, including, without limitation, all applicable privacy and anti-spam laws and regulations;
7.1.5.2 is not for any illegal purpose;
7.1.5.3 do not infringe or violate the rights of any person, including any intellectual property or privacy rights of any person; and
7.1.5.4 do not promote criminal activity, drug use, violence, pornography, gambling, or discrimination based on race, sex, religion, nationality, age, disability or sexual orientation.
7.1.6 To the extent that the User uses the PE or promotes, markets, sells or distributes any TuGo Products on or using any social media sites or applications (e.g. Facebook, Pinterest, Twitter, Youtube, etc.), the User shall comply with the terms and conditions of such social media sites or applications. The TuGo Group reserves the right to require the User to discontinue or modify the User’s use of such social media sites or applications to promote, market, sell or distribute any TuGo Products, if the TuGo Group, in its sole discretion, determines that the User’s use of such social media sites or applications is inconsistent with the Agreement, the Partner Platform Agreement, this PE Agreement, or any TuGo Policies.
7.1.7 The User shall not use the PE or promote, market, sell and/or distribute any TuGo Products on or in websites, chat rooms, forums, publications, or other media or materials that:
7.1.7.1 do not comply with all applicable laws or regulations, including, without limitation, all applicable privacy and anti-spam laws and regulations;
7.1.7.2 infringe or violate the rights of any person, including any intellectual property rights or privacy rights of any person;
7.1.7.3 promote criminal activity, drug use, violence, pornography, gambling, or discrimination based on race, sex, religion, nationality, age, disability or sexual orientation; or
7.1.7.4 are otherwise not reputable, in the TuGo Group’s sole determination.
7.1.8 The User shall not:
7.1.8.1 falsely state or otherwise misrepresent the User’s status as a Licensed Partner or Non-licensed Partner, or the User’s identity or affiliation with any person or entity;
7.1.8.2 carry on activities that a non-Licensee is prohibited from carrying on, if the User is a Non-licensed Partner;
7.1.8.3 omit, delete, forge or misrepresent transmission information, including headers, return mailing and Internet protocol addresses, or otherwise manipulate identifiers to disguise the origin of any Content;
7.1.8.4 interfere with, hinder or disrupt the PE or servers or networks connected to the PE, or violate any requirements, procedures, policies or regulations of networks connected to the Partner Platform or the PE;
7.1.8.5 interfere with, hinder or disrupt the ability of the TuGo Group or any other Partners to use the PE;
7.1.8.6 use the PE to access the accounts of others without permission;
7.1.8.7 use the PE or any portion thereof to access the information of the TuGo Group’s current or potential customers, Partners, or suppliers, except as expressly authorized by TuGo;
7.1.8.8 attempt to penetrate security measures of the PE, or of another entity, or obtain or bypass the passwords of any other Users;
7.1.8.9 use the information provided by or stored on the PE for any unlawful purpose, including, without limitation, the disclosure and/or sale of information to third parties unauthorized by the TuGo Group and the transmission of material that the TuGo determines to be threatening or obscene, “spam” messages, or harmful computer software;
7.1.8.10 circumvent, disable or otherwise interfere with security related features of the PE;
7.1.8.11 upload, post, disseminate or otherwise transmit any Content that contains worms, software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
7.1.8.12 use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses or uses the PE in a manner not approved by the TuGo Group.
7.1.9 The User covenants, represents and warrants that:
7.1.9.1 The obligations of the User in this PE Agreement are legal, valid, and binding obligations, enforceable against the User in accordance with the terms of this PE Agreement.
7.1.9.2 The User’s performance of its obligations under this PE Agreement shall not violate or conflict with any applicable:
7.1.9.2.1 law, rule, regulation, order, judgment, or decree; or
7.1.9.2.2 provision of the User’s by-laws, articles or constating documents, or agreement to which the User is a party.
7.2 Obligations Regarding Customer Information and Other User Content
7.2.1 The parties acknowledge that the PE may allow or require the User provide to the TuGo Group certain User Content, including Customer Information.
7.2.2 The User is solely responsible for all User Content, including the Customer Information. By providing, inputting, contributing, posting, publishing, uploading, disseminating or transmitting the User Content on, through, by or with the PE, the User grants to the TuGo Group a worldwide, non-exclusive, royalty-free, transferable license to use, reproduce, distribute, prepare derivative works of (except for the User’s trademarks), and display, the User Content in relation to the TuGo Group operating, providing, maintaining and administering the PE, or otherwise operating its business, and the User waives all of the User’s moral rights in and to such User Content.
7.2.3 The User covenants, represents, and warrants that:
7.2.3.1 the User has been authorized by the Customer to collect, use and provide the Customer Information to the TuGo Group;
7.2.3.2 the User shall collect, use and disclose the Customer Information in accordance with: the purposes for which it was collected (as consented to by the provider of the Customer Information), all applicable laws and regulations; any agreements between the User and the Customer; best industry practices in security; and the Agreement, the Partner Platform Agreement, this PE Agreement, and the TuGo Policies;
7.2.3.3 the User has the right and any required approvals and consents to submit, provide, input, contribute, post, publish, upload, disseminate and transmit the User Content, including the Customer Information, and the User is not prohibited from doing so under any applicable law or any contractual or fiduciary obligation;
7.2.3.4 the User has collected and provided the Customer Information to the TuGo Group using its best efforts to ensure and maintain the currency, completeness and accuracy of the Customer Information provided by the Customer to the User, and subsequently provided by the User to the TuGo Group;
7.2.3.5 the User Content, including the Customer Information, shall not contain any misrepresentations and the User Content, including the Customer Information, and the User’s use thereof shall not be unlawful, misleading, deceitful, defamatory, libellous, tortious, abusive, harassing, threatening, obscene, offensive, prejudicial, violent, pornographic, inappropriate, invasive of another's privacy, likely to bring the TuGo Group’s reputation into disrepute, or otherwise illegal;
7.2.3.6 the User Content shall not infringe or violate any other person’s privacy rights, or copyright, trade-mark, trade secret, patent or other intellectual property, proprietary or confidentiality rights; and
7.2.3.7 the User shall own or otherwise have the necessary licenses, rights, consents, and permissions to use the User Content, and the User indemnifies and saves harmless the TuGo Group from and against any losses or liabilities related to the use, dissemination or transmission of the User Content, including the Customer Information.
8.1 Whereas the PE may allow the User to purchase TuGo Products (or extensions or renewal thereof) online on behalf of a Customer, the User may be able to submit payment for TuGo Products on behalf of a Customer by way of the payment options indicated, which may include payment by the Customer’s credit card. When making such purchases on behalf of a Customer, the User will have to submit the Customer Information (with the Customer’s consent), including the Customer’s accurate and complete credit card or other payment information. The Customer will then be charged and obligated to pay for the TuGo Products that the User purchased on behalf of the Customer, using the payment information that the User has supplied. The Customer is responsible for paying all applicable taxes on TuGo Products that the Customer purchases.
8.2 To ensure secure transactions in processing payments, the TuGo Group will use appropriate security protocols to encrypt the Customer’s credit card or payment information, to prevent unauthorized parties from using the Customer’s credit card or payment information. While the TuGo Group makes commercially reasonable efforts to secure the Customer’s credit card or payment information pursuant to applicable laws and regulations, the TuGo Group cannot guarantee that security breaches will never occur and the TuGo Group will not be responsible or liable for any such breach or any losses arising therefrom.
8.3 Further to the Agreement and the Partner Platform Agreement, although the PE can be accessed from Canada and other countries around the world, some or all products and services described on the PE may not be available for purchase by persons residing in certain jurisdictions or geographical areas. The TuGo Group reserves the right, in its sole discretion, to exclude or otherwise limit the provision of any product or service to a person or entity residing in any jurisdiction or geographical area, and the User shall not provide any statement, proposal, quote, opinion, or any other information to a Customer that contradicts or otherwise misrepresents the availability of any TuGo Products. The TuGo Group does not represent or warrant that any product or service provided on the PE will be available for purchase by the Customer.
8.4 The User acknowledges, covenants and agrees that the User (and not the TuGo Group) shall be responsible and liable for, and shall defend, indemnify and hold harmless the TuGo Group from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to legal fees) arising from:
8.4.1 Any mishandling or unauthorized collection, use or disclosure of the Customer Information, including the Customer’s credit card or other payment information, by the User;
8.4.2 Any breach or unauthorized access or use of the User’s computer hardware, software, or any security measures placed thereon by the User; and
8.4.3 Any errors or inaccuracies in collecting and submitting to the TuGo Group the Customer Information, including the Customer’s credit card or other payment information payment information.
9.1 The User shall comply with and shall collect, use, handle and disclose all Content, personal information and Customer Information in accordance with all applicable privacy laws, the Agreement, the Partner Platform Agreement, this PE Agreement, and the TuGo Policies, including, without limitation, the TuGo Group’s privacy policies that are in effect from time to time. For a copy of the TuGo Group’s current privacy policy, please refer to https://www.tugo.com/en/privacy/.
10.1 The parties acknowledge and agree that at all times, the TuGo Group remains the sole and exclusive owner of the TuGo Intellectual Property and retains all rights, title and interest in and to the TuGo Intellectual Property, and the TuGo Intellectual Property remains, at all times, the sole and exclusive property of the TuGo Group; except as may be provided in the license granted in Section 10.5. For further clarity, the User shall not acquire any ownership, licence, or other rights or interest in or to any of the TuGo Intellectual Property, except as provided for in this PE Agreement.
10.2 For further clarity, all the TuGo Intellectual Property is protected under applicable copyright, trademark and other proprietary (including but not limited to intellectual property) rights owned and controlled by the TuGo Group or by persons who have licensed such rights to the TuGo Group.
10.3 The User may only use the TuGo Intellectual Property pursuant to the Agreement, the Partner Platform Agreement, this PE Agreement, the Other Agreements, and the TuGo Policies, including, without limitation, any trademark usage policy in effect from time to time. The User shall not copy, transmit, reproduce, distribute, display, publish, disseminate, transmit, distribute, sell, manipulate, compile, disclose, adapt, modify, use or otherwise exploit the TuGo Intellectual Property for any purpose whatsoever, other than purposes permitted under this PE Agreement. The TuGo Group reserves all rights not expressly granted in this PE Agreement.
10.4 The User shall exercise reasonable care to protect the TuGo Intellectual Property from unauthorized access or use.
10.5 During the term of this PE Agreement, the TuGo Group grants the User a non-exclusive, non-transferable, revocable, royalty-free license to use the TuGo Intellectual Property for the sole purpose of using the PE to conduct Promotional Activities, on the terms and conditions set out in the Agreement, the Partner Platform Agreement, this PE Agreement, the Other Agreements, and the TuGo Policies, including, without limitation, any trademark usage policy in effect from time to time.
10.6 The User shall:
10.6.1 not and shall have no rights to grant any licence and/or sublicence pertaining to the use of the PE or the TuGo Intellectual Property;
10.6.2 not change or modify or create derivative works from any of the TuGo Intellectual Property or the PE, except as may be expressly permitted in any other agreement applicable to the User, or with the TuGo Group’s prior written consent, which may be withheld in the TuGo Group’s sole discretion. For further clarity, the User shall not attempt to decompile or reverse engineer any software contained on the PE, and the User shall not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from the TuGo Group;
10.6.3 whenever using the TuGo Intellectual Property, identify the owner of the TuGo Intellectual Property in a manner sufficient to identify the ownership of the TuGo Intellectual Property and protect its validity. For further clarity, the User shall not remove, modify, obscure, or delete any copyright, trademark or other proprietary notations from any of the TuGo Intellectual Property;
10.6.4 not lessen, diminish or tarnish the goodwill and value associated with the TuGo Intellectual Property in any way, as determined by the TuGo Group, acting reasonably;
10.6.5 not use the TuGo Intellectual Property in a manner that misrepresents the relationship between the User and the TuGo Group or the identity of the User; and
10.6.6 not bid on or register search engine keywords such as "Google® AdWords™", search terms or other identifying terms or domain names that use the TuGo Intellectual Property (including, without limitation, the TuGo Group’s trademarks), for use in any search engine, portal, sponsored advertising service or other search or referral service.
10.7 All goodwill or value associated with the TuGo Intellectual Property generated through the User’s use of the TuGo Intellectual Property is and remains the exclusive property of the TuGo Group.
10.8 To the extent that the User has access to any confidential proprietary information of the TuGo Group, the User shall keep confidential and not disclose or permit access to any such confidential proprietary information, without the express written consent of the TuGo Group, and the User shall ensure that its directors, officers, employees and agents also keep confidential and do not disclose or permit access to any such confidential proprietary information without the express written consent of the TuGo Group.
10.9 In accordance with applicable privacy laws, when the User uses the Partner Platform, the PE, or the PE Tools to obtain information from other parties, including, without limitation, information from Customers, the TuGo Group’s current or potential customers, Partners, or suppliers, the User should obtain the other party’s consent and disclose the purpose for which the information is obtained, and the User shall not use such information for other purposes, except where authorized by the party providing the information.
11.1 The User agrees to defend, indemnify and hold harmless the TuGo Group from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to legal fees) arising from:
11.1.1 the use of and access to the PE, or any part thereof by the User or its User Delegates;
11.1.2 the breach or violation of the Agreement, the Partner Platform Agreement, this PE Agreement, the TuGo Policies, or any part thereof by the User or its User Delegates;
11.1.3 the TuGo Group enforcing any of the obligations of the User or its User Delegates under the Agreement, the Partner Platform Agreement, this PE Agreement or the TuGo Policies;
11.1.4 the breach or violation of any applicable laws or regulations, including without limitation any anti-spam or privacy laws by the User or its User Delegates;
11.1.5 the violation of any third party right (including any Customer right), including without limitation any privacy right, copyright or other intellectual property right by the User or its User Delegates;
11.1.6 any claim of a Customer against the TuGo Group arising from the User or the User’s Delegate’s acts, omissions, negligence, misrepresentation or improper use and disclosure of the Customer Information contrary to this PE Agreement; or
11.1.7 any claim that any of the User Content caused damage to a third party.
11.2 These defence and indemnification obligations will survive any termination of this PE Agreement and/or the Partner Platform Agreement.
12.1 Whereas the TuGo Group may pay to the User compensation in consideration of the User referring customers to the TuGo Group and/or promoting, marketing, selling and distributing the TuGo Products:
12.1.1 the parties acknowledge and agree that the terms of such compensation shall be governed by the terms of any of the Other Agreements between the TuGo Group and the User which the User accepts; and
12.1.2 the TuGo Group may set off and deduct from such compensation payable to the User, any amounts owing by the User to the TuGo Group.
12.2 Whereas, in order to determine the compensation payable to the User, the TuGo Group may track or monitor certain information which may serve as the basis upon which the User is compensated (e.g. leads or transactions):
12.2.1 the User shall not:
12.2.1.1 circumvent, disable, hinder, manipulate or otherwise interfere with (including, without limitation, by way of any automated system) any mechanism used to track or monitor such information;
12.2.1.2 manipulate tracking information, tracking links or other Content to artificially inflate compensation or the information which may serve as the basis upon which the User is compensated;
12.2.1.3 do anything to falsify, artificially inflate or manipulate the information being tracked or monitored, including, without limitation, offering incentives or compensation to generate an increased number or volume of customers referred to the TuGo Group by the User, where the increased number or volume of referred customers does not actually represent customers who are genuinely interested in purchasing the TuGo Products;
12.2.1.4 generate leads other than by a mechanism approved by the TuGo Group or contemplated in this PE Agreement; and
12.2.1.5 otherwise generate leads or transactions in bad faith, or from any device, program, robot, computer script or other automated methods to artificially inflate compensation or the basis upon which the User is compensated; and
12.2.2 to the extent that the TuGo Group provides to the User a mechanism to track or monitor such information, the User is responsible for properly implementing and using the mechanism as directed by the TuGo Group, in order to ensure that the information is accurately tracked. The TuGo Group will not be responsible for the User’s failure to properly implement or use the mechanism.
12.3 If the TuGo Group, in its sole discretion, determines that the User has violated the provisions of Section 12.2, or engaged in any activity that the TuGo Group considers to be fraudulent or which might bring the reputation or standing of the TuGo Group into disrepute either with the general public or with the TuGo Group’s current or potential customers, Partners, or suppliers, then, without limiting the TuGo Group’s other rights and remedies:
12.3.1 the TuGo Group may (but will not be obligated to) immediately terminate this PE Agreement and deactivate the User’s access to the PE, and release to any third party or governmental authority any information relating to the identity and location of the User, if requested to do so; and
12.3.2 any compensation due and payable by the TuGo Group to the User at the time of termination will be deemed to be forfeited.
12.4 For further clarity, fraudulent activity includes but is in no way limited to the User’s violation of the provisions of Section 12.2.
12.5 The TuGo Group may at any time audit the User for compliance purposes and the User agrees to provide the TuGo Group with any information reasonably necessary to conduct an investigation into the User’s compliance with this PE Agreement.
13.1 The TuGo Group provides the PE on an “as is” and “as available” basis.
13.2 In providing the Services, the TuGo Group may retain third party service providers (such as Amazon Web Services™) to host the Partner Platform and the PE or certain portions thereof (including on the cloud), and to transfer, store and process data in Canada or any other jurisdiction in which the TuGo Group or its third party service providers maintain facilities, such that such data may be subject to the applicable local laws of that jurisdiction and may be accessible to the law enforcement and national security authorities of that jurisdiction. For further clarity, hosting services and data provided through or stored on the Partner Platform and the PE, including Content and User Content, may be located in servers and data storage centres outside of British Columbia and/or Canada and may be subject to the applicable local laws of the jurisdiction where the storage centres are located. By using the Services, the User consents to the TuGo Group retaining such third party service providers to host the Partner Platform and the PE or certain portions thereof (including on the cloud), and to transfer, process and store data in Canada or any other jurisdiction in which the TuGo Group or its third party service providers maintain facilities.
13.3 The TuGo Group does not guarantee the availability of the Partner Platform or the PE, or that access thereto will be uninterrupted or error-free. The TuGo Group reserves the right to interrupt, limit, or suspend access to the Partner Platform and/or the PE from time to time for purposes of maintenance, upgrades, and similar reasons. The User agrees that neither the TuGo Group nor any of its service providers shall be held responsible or liable for any damages arising from any interruption, suspension or termination of the Partner Platform or the PE, regardless of the cause.
13.4 The parties acknowledge that the PE may contain Content or links from third parties, and such Content or links from third parties may not be owned or controlled by the TuGo Group and the TuGo Group does not investigate or monitor such Content or links from third parties. Accordingly, the TuGo Group:
13.4.1 is not responsible for and does not approve or endorse any such Content or links from third parties; and
13.4.2 expressly disclaims any and all express or implied warranties or representations, or liability in connection with any such Content or links from third parties.
13.5 The User acknowledges and agrees that the User uses the PE at the User’s sole risk, and that the TuGo Group disclaims and is not responsible for, and the User discharges the TuGo Group from, any claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation legal fees) arising from the User’s use of and access to the PE, or any part thereof (including, without limitation, any Content, Customer Information, or links from third parties).
13.6 To the fullest extent permissible pursuant to applicable law, the TuGo Group disclaims all warranties and representations of any kind in respect of the PE (and any Content thereon), whether express, implied or statutory, including, but not limited to, implied warranties of non-infringement, merchantability and fitness for a particular purpose.
13.7 Further to and without limiting the generality of the foregoing, the TuGo Group does not warrant or make any representations:
13.7.1 that the PE will meet User’s requirements;
13.7.2 that the PE will be uninterrupted, timely, secure, or accurate;
13.7.3 that the PE will be free from bugs, errors, viruses, Trojan horses or similar problems;
13.7.4 as to the results that may be obtained from the User’s use of the PE; and
13.7.5 as to the accuracy, safety or reliability of any Content obtained from or through the PE.
13.8 No advice or information, whether oral or written, obtained by the User from the TuGo Group shall create any warranty not expressly made herein.
13.9 The TuGo Group may make available certain information on the PE regarding the Content, the TuGo Policies, and the TuGo Products, including, but not limited to, “Frequently Asked Question” publications, brochures, policy statements, and other informational resources. Any such information published by the TuGo Group is provided solely for general illustration and instructional purposes and does not create a business or professional services relationship and does not constitute advice or direction by the TuGo Group. Any reliance on the information so provided is at the User’s own risk.
14.1 The TuGo Group shall NOT be liable for any direct, indirect, special, incidental or consequential damages (including damages for loss of business, loss of profits, litigation or the like), in relation to this PE Agreement, the TuGo Policies, or the PE, whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if the TuGo Group is advised of the possibility of such damages, or had direct or imputed knowledge of the possibility of such damages or loss in advance. In any event, the TuGo Group’s aggregate liability for any damages arising with respect to the Agreement, the Partner Platform Agreement, this PE Agreement, or the PE will not exceed the total compensation paid or payable by the TuGo Group to the User under this PE Agreement and any Other Agreements, for the three (3) months immediately preceding the date when such damages are awarded.
14.2 The negation of damages set forth above is a fundamental element of the basis of the bargain between the TuGo Group and the User, and the PE would not be provided by the TuGo Group to the User without such limitations.
15.1 Although the TuGo Group will use commercially reasonable efforts to store the data that the User provides to the TuGo Group, the TuGo Group ASSUMES NO RESPONSIBILITY FOR LOSS, CORRUPTION OR DAMAGE TO THAT DATA.
15.2 The User is solely responsible for the data and settings in the User’s account and for the data that the User stores, retrieves, transmits or synchronizes within or to the User’s account or the PE.
15.3 The User is solely responsible for maintaining backups and/or archival copies of the User’s data and to perform periodic backups and system analyses of the User’s data to prevent data loss.
15.4 Without limiting any of the foregoing, the TuGo Group shall have no obligation to store data in excess of the amount of commercially reasonable data storage. The User acknowledges that password-protected security systems may be subject to unauthorized access so that it is possible for an unauthorized third party to access, view, copy, modify and distribute any data in the User’s account.
15.5 The User also agrees not to access or attempt to access any other User’s account for which the User has no access authorization or gain unauthorized access to any of the servers or systems controlled by the TuGo Group.
16.1 The term of this PE Agreement commences upon the earlier of the User accepting the terms of this PE Agreement, or the date that the User begins to use the PE.
16.2 The TuGo Group may terminate this PE Agreement and discontinue the User’s access to and the TuGo Group’s provision of the PE, or any part thereof, effectively immediately, if the User does not comply with any terms of the Agreement, the Partner Platform Agreement, this PE Agreement or the TuGo Policies.
16.3 Either the User or the TuGo Group may terminate this PE Agreement, thereby discontinuing the User’s access to and the TuGo Group’s provision of the PE, or any part thereof, with or without cause at any time, effective immediately upon written notice to the other party.
16.4 Termination of the Partner Platform Agreement shall be deemed to include the simultaneous and concurrent termination of this PE Agreement (and the User’s rights hereunder) and any access to the PE by the User.
16.5 Upon termination of this PE Agreement, the TuGo Group may deactivate the User’s account, login and password.
16.6 The TuGo Group shall not be liable to the User or any third party for terminating this PE Agreement, or discontinuing the User’s access to and the TuGo Group’s provision of the PE, or any part thereof.
16.7 Should the User object to any terms and conditions of the Agreement, the Partner Platform Agreement, this PE Agreement, the TuGo Policies, or any subsequent modifications thereto or become dissatisfied with the PE in any way, the User’s only recourse is to immediately discontinue its use of the PE.
16.8 Upon termination of this PE Agreement, the User shall cease accessing and using the PE, or any part thereof, and shall cease using and delete or return to the TuGo Group all the TuGo Intellectual Property, and all Content that is in the User’s possession or control that was owned, developed or provided by the TuGo Group, including, without limitation, all confidential and proprietary Content (in any format), which was received by the User from the TuGo Group, the PE, and the Customer.
16.9 Upon termination of this PE Agreement, any and all rights or privileges of the User to access or use the PE and to use the TuGo Intellectual Property shall immediately cease and expire, and the User shall immediately discontinue the use thereof.
16.10 Notwithstanding anything to the contrary herein, the provisions of Sections 4, 10, 11, 13 and 14 (as they relate to the TuGo Group’s rights) will survive any termination of this PE Agreement.
17.1 Notice.All notices to the TuGo Group shall be in writing and shall be delivered to the TuGo Group at the address and to the contact person specified by the TuGo Group from time to time. All notices to the User shall be in writing and may be made by posting or broadcasting such notices on or through the PE.
17.2 Governing Law. This PE Agreement shall for all purposes be governed by and interpreted and enforced in accordance with the laws of British Columbia. The TuGo Group and the User agree to submit to the exclusive jurisdiction of the courts of British Columbia and all legal proceedings arising out of or in connection with this PE Agreement shall be brought solely in British Columbia.
17.3 Assignment. The User's login, password and rights under this PE Agreement are not transferable or assignable, except with the TuGo Group’s express prior written consent and any attempted transfer or assignment without the TuGo Group’s express prior written consent shall be null, void and without effect.
17.4 Enurement. This PE Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their respective representatives, heirs, administrators, successors and permitted assigns except as otherwise provided herein.
17.5 No Agency. The User and the TuGo Group are independent contractors and nothing in this PE Agreement makes either party an agent, employee, joint venturer, partner, or legal representative of the other party for any purpose, and nothing in this PE Agreement grants either party the right to bind or enter into any contracts in the name of or on behalf of the other party.
17.6 Severability. If any provision(s) of this PE Agreement is/are held by a court of competent jurisdiction to be contrary to law, or otherwise invalid or unenforceable, then such provision(s) shall be severable from this PE Agreement, or construed, as nearly as possible, to reflect the intentions of the parties, with the other provisions remaining in full force and effect.
17.7 No Contra Preferentum.The construction and interpretation of this PE Agreement shall not be strictly construed against the drafter.
17.8 Translations. This PE Agreement was originally drafted in the English language. While the TuGo Group may provide a translation of the English language version of this PE Agreement into the French language, the French language version of this PE Agreement (the “French Translation”) is only provided for the User’s convenience. The English language version of this PE Agreement is the version that should be used and relied on in interpreting and construing the meaning of this PE Agreement. To the extent that there is any conflict, discrepancy or inconsistency between the French Translation and the English version of this PE Agreement, the English version of this PE Agreement governs and takes precedence.
17.9 Waiver. The TuGo Group’s failure to exercise or enforce any right or provision of this PE Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by an instrument in writing expressly waiving such right or provision and signed by a duly authorized officer of the TuGo Group. Any waiver by the TuGo Group of any breach of this PE Agreement shall not constitute a waiver of any other or subsequent breach.
17.10 Limitation Period. Any cause of action of the User with respect to this PE Agreement or the PE must be instituted within six (6) months after the cause of action arose or be forever waived and barred. All actions shall be subject to the limitations set forth in Sections 13 and 14.
