Terms of Use

R22 Development Inc., an Alberta corporation, also operating as Spearhead Online, (‘Spearhead‘), provides various products and services (collectively, the ‘Spearhead Services‘) to automobile Clients and other clients (the “Client” or collectively the “Clients”). These Terms of Use, the Privacy Policy, and all policies made available at Spearhead’s website at spearheadonline.com set out the terms on which we offer clients access to and use of Spearhead’s website, services, online portals, applications, tools and any and all other Spearhead Services. The Spearhead Services include, but are not limited to, data receipt, management & redistribution for use on client-specified online destinations and third-party systems, various digital marketing products, artificial intelligence powered services and integrations, consulting and other various services and technology.

By using or accessing any Spearhead Services or by signing any contract for services subscribing to any Spearhead Services, the Client or user must be capable of forming a binding contract under applicable law and is agreeing to be bound by the terms and conditions set forth in this Terms of Use (this ‘ToU‘), both individually and on behalf of a specified Client. Any use of or access to any Spearhead Services by the Client or any officer, agent, contractor, representative or employee of the Client that has been issued a username and password to access the Spearhead Services for and on behalf of the Client (the “Users”) will all be governed by this ToU. This ToU is a legally binding contract. Please read it carefully prior to using or accessing any Spearhead Services or signing any contract.

Spearhead Services

Subject to the Client’s compliance with the terms of this ToU, including payment of any applicable one time fees or monthly subscription fees or other fees or compensation as may be agreed to, Spearhead will provide and make available to the Client and its Users the Spearhead Services to which the Client has ordered or is subscribed to pursuant to this ToU.

License to Spearhead Services

Spearhead grants to the Client and its Users a limited, non-exclusive and non-transferable right and license to use and access the Spearhead Services to which the Client has requested, has subscribed to or has been provided. The Client will be responsible and liable for all actions that may be taken by its Users in connection with their use of any Spearhead Services, including any unauthorized use of any Spearhead Services or any other violation of this ToU.

Access to Spearhead Services

The Client and its Users may access the Spearhead Services which are provided by Spearhead to the Client at the Spearhead website located at www.spearheadonline.com or by other methods as may be provided by Spearhead to the Client. Spearhead may issue to the Client or its Users username(s) and password(s) to access the applicable Spearhead Services. Any username, password or other login credential or other access methods issued to the Client or any User for use in accessing any Spearhead Services, whether issued by Spearhead or issued by the Client or other User with client administration access to the Spearhead Services, is confidential and may not be shared with any third party. Any unauthorized use or disclosure of Client or User account information must be immediately reported to Spearhead by contacting spearheadsupport@spearheadonline.com.

Restrictions

The Client nor any User will not: (a) sell, rent, lease, sublicense, transfer, lend, pledge, distribute or provide access to or otherwise make available to any third party any Spearhead Services or any documentation or other information relating thereto unless expressly agree to by Spearhead or explicitly set forth in this ToU or a signed contract; or (b) copy, duplicate, reproduce, modify, translate, reverse engineer, decompile or disassemble any Spearhead Services, or develop or create any derivative works of or relating to any Spearhead Services or any underlying technology or intellectual property comprising any Spearhead Services; or (c) scrape or data-mine any Spearhead Services, the Spearhead website or the website of any affiliate of Spearhead (including through the use of any robot, spider or other automated device); or (d) frame or utilize framing techniques to enclose any portion of any Spearhead Services or the Spearhead website; or (e) take any action, the intent or likely effect of which would be to cause harm to the business or reputation of Spearhead or its affiliates.

Client Data

As part of providing the Spearhead Services, Spearhead may receive, be provided or otherwise access data from the Client, from Client systems or about the Client, the Client’s customers or Client assets such as inventory or other data (the “Client Data”), whether the Client Data originates or is provided to Spearhead by the Client or third parties.

Data Ownership

Spearhead and the Client acknowledge and agree that: (i) all right, title, interest in and to Client Data will reside in the party originally owning the right to said data when such data is either supplied to Spearhead or the Client or to Spearhead or Client systems; (iii) both Spearhead and the Client may use the non-identifiable, specific or aggregated Client Data for their own purposes, subject to any restriction provided by the owner of the data.

Data Accuracy

The Client is solely and exclusively responsible for ensuring the accuracy and integrity of any Client Data or other information that may be input or otherwise provided or transmitted to by or on behalf of the Client. The Client also assumes sole and complete responsibility for any information, descriptions, listings, postings, advertisements and other content and materials that may be modified, created or generated by or through any Spearhead Services for the Client (‘Generated Content‘), and the Client will ensure the accuracy and completeness of all Generated Content prior to publishing or otherwise making such Generated Content available on the Internet or to any third party.

Spearhead may use the the Client Inventory Data for or in connection with: (a) the aggregation of data and information including the Client Data for the purpose of assembling and developing Generated Content; or (b) publishing or otherwise distributing or disseminating Generated Content to Client-specified destinations, Client systems or any other third party destination or system; and (c) for any other purpose as may be requested by the Client or as may be necessary to provide the Spearhead Services.

Data Obligations

Spearhead and the Client agree to comply with all applicable legal obligations related to privacy, security, integrity, ownership, and confidentiality of data and Client Data and will implement and maintain appropriate administrative, technical, and physical safeguards reasonably designed to protect against security threats and unauthorized access or use of the Spearhead Services, Client Data and Generated Data. Notwithstanding anything to the contrary herein, the Client alone is responsible for ensuring that the Client and its Users: (a) comply with all federal, provincial (or, if applicable, state) and local laws, regulations, rules, ordinances and other decrees of any governmental authority, including any laws and regulations relating to privacy, security, integrity and confidentiality of data, the Client Data and Generated Data; (b) do not infringe or violate the Intellectual Property Rights or any other rights of any third party; and (c) comply with all terms and conditions, terms of use and other third party agreements to which the Client is or may be subject to in respect to any website, system or third party entity to which any Generated Content may be transmitted to, posted, uploaded or distributed. Neither Spearhead nor any Spearhead affiliates or related parties will have any responsibility or obligation under this ToU or otherwise for any of the obligations described in clauses (a), (b) and (c) above.

Compensation

In exchange for the rights and licenses granted to the Client in this ToU, the Client will pay to Spearhead any one-time fee, usage fee, recurring monthly subscription fees or other fees for the Spearhead Services to which the Client has agreed to, whether such agreement is in the form of a signed contract or agreement or any other form, and upon the terms thereby agreed to. Except as may be explicitly otherwise agreed to by Spearhead, all compensation and fees payable or paid to Spearhead are non-refundable.

Cancellation of Spearhead Services

Any notice of termination or cancellation of the Spearhead Services by the Client must be sent to spearheadsupport@spearheadonline.com. Any proper termination or cancellation by the Client of Spearhead Services will be processed by Spearhead by no later than the end of the applicable monthly billing cycle during which the effective date of the Client’s termination or cancellation falls or otherwise as may be set out in any other signed contract or agreement entered into by Spearhead and the Client outside of this ToU. No termination or cancellation of any Spearhead Services will be effective until Spearhead has confirmed such termination or cancellation as provided for above.

Effect of Cancellation

Upon any termination or cancellation of Spearhead Services by the Client, all rights, obligations and licenses granted to the Client and its Users will immediately and automatically terminate, and any unpaid compensation, fees or other amounts due by the Client to Spearhead will be immediately due and payable. In addition to the foregoing, the Client will: (i) immediately discontinue any access or use of any Spearhead Services; (ii) promptly pay all accrued and outstanding amounts due to Spearhead; (iii) delete Confidential Information of Spearhead or its affiliates from computer storage or any other media including, but not limited to, online and off-line libraries; and (iv) return to Spearhead or, at Spearhead’s option, destroy, all physical copies of any Confidential Information of Spearhead or its affiliates.

Indemnification & Limitation of Liability

Indemnification

The Client will, at its expense, defend, indemnify and forever hold harmless Spearhead and its affiliates, and its and their respective third party licensors and data and service providers, and the officers, employees, representatives and agents of each of the foregoing (collectively, the “Related Parties’), from and against any and all claims, judgments, losses, liabilities, damages, demands, payments, fines, costs, expenses and recoveries of any nature or description incurred by Spearhead or any Spearhead Related Party, in each case to the extent arising from or in any way relating to: (a) any breach by the Client or any of its officers, employees, contractors, representatives or agents (collectively, the “the Client Representatives”), or any breach by any User of any representation, warranty, covenant or other provision of this ToU; or (b) any use of or access to any Spearhead Services or the Spearhead website; and (c) the use or publication of any Generated Content.

Limitation of Liability

Spearhead and the Related Parties will in no event be liable to the Client, Users or any other person for any indirect, special, exemplary, incidental, multiple, consequential or punitive damages (including any damages resulting from any loss of use, loss of data, loss of profits, loss of business or other economic loss) arising out of or in connection with this ToU or use of the Spearhead Services, the Spearhead website or any Generated Content, even if Spearhead or the applicable Related Parties have been advised of the possibility of such damages. Additionally, the aggregate liability of Spearhead and the Related Parties under this ToU will be expressly limited to an amount equal to three (3) times the average monthly fees paid or payable to Spearhead by the Client during the prior 3 month period for Spearhead Services which the Client has paid or which is payable.

Confidential Information

Confidentiality and Non-Disclosure

Definition. For purposes of this ToU, “Confidential Information” will include the terms of any draft of or fully executed contract or agreement entered into by Spearhead and the Client and all non-public business information pertaining to the disclosing party (the “Disclosing Party”), that is delivered or disclosed by or on behalf of the Disclosing Party to the Receiving Party in writing, orally or otherwise that the Disclosing Party designates as confidential in writing to the Receiving Party at the time of disclosure, or that, given the nature of the information and the circumstances surrounding disclosure known to the Receiving Party, would appear to a reasonable person to be confidential. Both Spearhead and the Client understand and agree that the Disclosing Party may be Spearhead, the Client or a third party. Confidential Information may include, but shall not be limited to, information relating to: (i) the Disclosing Party’s planned or existing technology, systems and computer products and system architecture, including computer hardware, computer software, source code, object code, documentation, methods of processing, product configuration, data collection configuration and distribution methods and processes and operational methods; or (ii) the Disclosing Party’s Client Data, including customer lists, sales, profits, organizational structure and restructuring, new business initiatives and finances; or (iii) the Disclosing Party’s services and products, product designs, and how such products are administered and managed; or (iv) the Disclosing Party’s product strategies, tax interpretations, tax positions and treatment of any item; and (v) confidential information of third parties with which the Disclosing Party conducts business. Notwithstanding the foregoing, Confidential Information will not include information that: (A) is or becomes generally known to the public not as a result of a disclosure by the receiving party (the “Receiving Party”); or (B) is rightfully in the possession of the Receiving Party prior to disclosure by the Disclosing Party; or (C) is received by the Receiving Party in good faith and without restriction from a third party, not under a confidentiality obligation to the Disclosing Party and having the right to make such disclosure.

Restrictions

The Receiving Party acknowledges that it may be provided or may come in contact with Confidential Information. Accordingly, the Receiving Party agrees: (i) that it will keep all Confidential Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized use or disclosure (but in no event shall the Receiving Party use less than all diligent and good faith efforts to safeguard the confidentiality of Confidential Information); (ii) that it will not, directly or indirectly, disclose any Confidential Information to anyone outside of the Disclosing Party, except with the Disclosing Party’s prior written consent in each instance; (iii) that it will not make use of any Confidential Information for its own purposes (except as necessary to fulfill its obligations under this this ToU or any other contract or agreement entered into by both parties) or for the benefit of anyone other than the Disclosing Party; and (iv) that: (A) upon the expiration or cancellation of Spearhead Services; or (B) at any time the Disclosing Party may so request, the Receiving Party will deliver promptly to the Disclosing Party, or, at the Disclosing Party’s option, the Receiving Party will destroy all memoranda, notes, records, reports, media and other documents and materials (and all copies thereof) regarding or including any Confidential Information that the Receiving Party may then possess or have under its control.

Permitted Disclosure

• Notwithstanding anything in this ToU to the contrary, the Receiving Party may disclose Confidential Information to its employees and agents having a need to know such information in connection with fulfilling its obligations pursuant to the provision of Spearhead Services. Both parties will instruct all of their respective employees, agents, representatives and subcontractors as to their obligations under this ToU and will be responsible for any breach of this ToU by such employees, agents representatives and subcontractors.
• The Receiving Party may disclose Confidential Information to the limited extent required by law; provided, however, that the Receiving Party notifies the Disclosing Party In Writing in advance of such disclosure, and provides the Disclosing Party with copies of any related information so that the Disclosing Party may take appropriate action to protect the Confidential Information prior to disclosure.

Remedies

The Receiving Party acknowledges that the disclosure of Confidential Information in breach of the terms of this ToU may cause the Disclosing Party irreparable injury and damages that may be difficult to ascertain.  Therefore, the Disclosing Party, upon a disclosure or threatened disclosure of any Confidential Information, will be entitled to seek injunctive relief (without being required to post bond), including, but not limited to, a preliminary injunction upon an ex parte application by the Disclosing Party to protect and recover its Confidential Information, and the Receiving Party will not object to the entry of an injunction or other equitable relief against the Disclosing Party on the basis of an adequate remedy at law, lack of irreparable harm or any other reason. Without limiting the foregoing, the Receiving Party will advise the Disclosing Party immediately in the event that it learns or has reason to believe that any person or entity that has had access to Confidential Information, directly or indirectly, through the Receiving Party, has violated or intends to violate the terms of this ToU.  This provision will not in any way limit such other remedies as may be available to the Disclosing Party, whether under this ToU, other contract or agreement entered into by Spearhead and the Client, at law, or in equity.

Spearhead Privacy

Spearhead certifies that it is in compliance with any applicable laws and/or regulations with respect to privacy and data security relative to Confidential Information of the Client and that it has implemented and currently maintains an effective information security program to protect such Confidential Information

Client Privacy

The Client certifies that it is in compliance with any applicable laws and/or regulations with respect to privacy and data security relative to Confidential Information of Spearhead and that it has implemented and currently maintains an effective information security program to protect such Confidential Information. Notwithstanding anything to the contrary set forth herein and any other remedy notwithstanding, Spearhead reserves the right to terminate the Spearhead Services (without penalty to Spearhead) immediately upon written notice to the Client should a material breach occur and to pursue such other remedies as may be available to Spearhead, whether under this ToU, other contract or agreement entered into by Spearhead and the Client, at law, or in equity.

Disclaimer

Neither Spearhead nor any Related Parties make any representation or warranty to the Client, Users or any other person with respect to any Spearhead Services, the Spearhead website or any Generated Content, express or implied, including any express or implied representation or warranty of title, suitability, legality, merchantability or fitness for a particular purpose, non-infringement or any other representation or warranty of any type or nature, all of which are expressly disclaimed. without limiting the generality of the foregoing, Spearhead makes no representation or warranty that any Spearhead Services or the Spearhead website will operate error-free, without interruption or in accordance with any specifications or documentation.

Notices

All notices, demands and requests required or permitted to be given by the Client under this ToU, notwithstanding any term that may be set out within any other signed contract or agreement which will take precedence, will be effective if in writing and sent prepaid by internationally recognized private courier (e.g., DHL, FedEx, etc.) to Spearhead at R22 Development Inc., Attention: Legal Department, Unit 620, 17008 90 Ave NW, Edmonton, AB, T5T 1L6 AND by email to spearheadsupport@spearheadonline.com. Any such notice or other document will be deemed to have been served (if delivered) at the time of delivery.

Relationship of Parties

Neither this ToU nor the cooperation of the parties contemplated herein will be deemed or construed to create any partnership, joint venture or agency relationship between Spearhead and the Client.  Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.

Severability

The invalidity or unenforceability of any provision of this ToU will not affect the validity or enforceability of any other provision of this ToU.  In the event that any provision of this ToU is determined to be invalid, unenforceable or otherwise illegal, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the ToU will be in full force and effect.

Waiver

No term or condition of this Agreement will be deemed waived, and no breach will be deemed excused, unless such waiver or excuse is In Writing and is executed by the party against whom such waiver or excuse is claimed.

Entire Agreement

This ToU, the Privacy Policy and any signed contract or agreement entered into by Spearhead and the Client relative to the provision of Spearhead Services, constitute the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as specifically set forth herein.

Assignment

The Client may not assign any of its rights or obligations under this ToU without the prior written consent of Spearhead. Spearhead may assign any or all of its rights or obligations under this ToU without the prior written consent of the Client.

Amendments

This ToU may be amended, supplemented, or modified only by a written agreement signed by both of the parties to this ToU.

Governing Law and Dispute Resolution

This ToU will be governed by and construed in accordance with the laws of the Province of Alberta, without regard to its conflict of laws principles.  The parties agree to submit to the exclusive jurisdiction of the courts of Alberta to resolve any legal matter arising from or related to this ToU. The parties further agree that any claim or cause of action arising out of or related to this ToU must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Last Updated: March 01, 2024