Terms of Service
EXPONENTIAL LABS INC TERMS OF SERVICE
These Terms of Service shall govern all Services provided by Exponential Labs to the Subscriber.
In consideration of the mutual promises contained herein, Exponential Labs and Subscriber agree as follows:
1. DEFINITIONS
In this Agreement:
"Agreement" means this agreement, consisting of these Terms of Service and Services Description outlined in the Pricing Plan;
"Documentation" means all written, electronic, online, user manuals, reference guides and other documentation provided, or made available, by Exponential Labs to Subscriber under this Agreement;
"Effective Date" means the date on which Exponential Labs shall commence providing Services, as specified in the Pricing Plan.
"Pricing Plan" means the description of the services to be provided by Exponential Labs that was contained in, or referenced by, the Pricing Plan on the Website
"Services" means those services that Exponential Labs provides to Subscriber pursuant to this Agreement, as described in the Pricing Plan;
"Term" means the term of this Agreement as defined in section 9;
"Terms of Service" means those provisions governing Subscriber's access to, and use of, the Services. The Terms of Service shall consist of (i) this Agreement and (ii) each policy statement, legal notice, and/or disclaimer which is marked "Legal Notices" and posted by Exponential Labs on the Website; and
"Website" means the website accessible on the internet at www.plusdemographics.com.
2. SERVICES
(a) Exponential Labs shall provide to Subscriber the Services described in the Pricing Plan
(b) Non-Exclusive Licence Subject to these Terms of Service, and upon payment by the Subscriber of all amounts owing hereunder, Exponential Labs grants to Subscriber a non-exclusive, non-assignable, and non-transferable licence during the Term to access and use the Services and any data generated thereby.
(c) Designation of Contacts Subscriber shall designate a primary contact and may also designate an alternate contact, and may change the contacts from time to time by written notice to Exponential Labs. The designated contacts shall have the responsibility for communicating with and providing necessary assistance to Exponential Labs during the term of this Agreement.
(e) Compliance with Policies Subscriber shall at all times comply with the Legal Notices posted on the Website from time to time.
3 SUBSCRIBER CONTENT
(a) Subscriber Content Subscriber shall be solely responsible at all times for all Subscriber Content
4. EXPONENTIAL LABS INTELLECTUAL PROPERTY
(a) Exponential Labs Property All, software, logos, graphics, designs, text, images, animations, applets, web pages audio, video, multimedia, and other components forming part of the Services or Documentation ("Exponential Labs Property") are proprietary to Exponential Labs or Exponential Labs' licensors, are protected by domestic and international laws and treaties, and shall remain the sole property of Exponential Labs or Exponential Labs' licensors. For greater certainty, Exponential Labs Property shall not include any Subscriber Content provided by Subscriber.
5. FEES
(a) Payment by Subscriber Subscriber shall pay Exponential Labs the amounts specified in the Services Description, plus all applicable taxes.
6. LIMITED WARRANTY
(a) Warranties Exponential Labs warrants that the Services shall be provided in a proper and workmanlike manner, consistent with prevailing industry standards.
(b) Service Levels Exponential Labs shall use reasonable efforts to provide the Services at all times except during scheduled backup and maintenance windows and to complete maintenance or upgrades during Exponential Labs' scheduled site or network maintenance and backup windows. Exponential Labs shall not be responsible for unavailability of any Services due to Subscriber or third-party network or communications failure. In the event of an interruption of Services due to a failure of Exponential Labs' equipment or software, Exponential Labs shall use reasonable efforts to restore the Services within a reasonable period of time.
(c) SERVICES PROVIDED AS IS EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, USE OF THE SERVICES AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND.
(d) DISCLAIMERS EXPONENTIAL LABS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND ANY WARRANTIES ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. EXPONENTIAL LABS DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION OR THAT THEY WILL MEET SUBSCRIBER'S REQUIREMENTS. SUBSCRIBER ASSUMES THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICES.
7. LIMITATION OF LIABILITY
(a) Limited Liability To the maximum extent permitted by applicable law, in no event shall Exponential Labs or its suppliers be liable for any consequential, special, incidental or punitive damages whatsoever (including, without limitation, damages for loss of revenue or profits, donations, business interruption or loss of business information) arising out of or related to this Agreement or the use, quality, or performance of the Services, even if Exponential Labs has been advised of the possibility of such damages and regardless of the legal basis for relief.
(b) Limit Exponential Lab's entire liability to Subscriber shall not exceed the amount paid to Exponential Labs by Subscriber under this Agreement during the year preceding the initiation of any claim by Subscriber for damages arising out of, or related to, this Agreement.
(c) Scope of Limitation Notwithstanding any other provision of the Agreement, the foregoing exclusions and limitations shall apply regardless of the nature of the loss or damages or the legal basis of any claim, whether made in contract, tort, strict liability or any other legal theory or cause of action, whether legal or equitable. The foregoing exclusions and limitations shall survive the expiry or termination of this agreement, regardless of cause, including breach of a fundamental term or condition or fundamental breach.
(d) Fee Acknowledgement Subscriber acknowledges that the fees charged by Exponential Labs under this Agreement contemplate the allocation of risks contained in this Agreement.
8. INDEMNITY
(a) Subscriber Indemnity Subscriber shall indemnify and hold Exponential Lab's harmless from any and all claims, actions, damages, liabilities, costs and expenses suffered or incurred by Exponential Labs arising from Subscriber's use of the Services or any breach of the terms of this Agreement by Subscriber whether in tort, contract, intellectual property or otherwise, including without limitation any claims or damages caused by: (i) willful acts or negligence of Subscriber or any of its employees, agents or representatives; or (ii) the use or copying by Exponential Labs in accordance with this Agreement of any Subscriber Content.
9. TERM AND TERMINATION
(a) Term Unless earlier terminated as set forth herein, the initial term of this Agreement shall commence on the Effective Date and continue for the period of time set forth in the Services Description (the "Initial Term"). Subject to paragraph 9(b), this Agreement shall automatically be renewed for a further term set forth in the Services Description (the "Renewal Term") at the end of the Initial Term and each Renewal Term, unless either party gives the other party written notice of termination at three (3) days prior to the end of the Initial Term or least thirty (30) days prior to the end of the of the then-current Renewal Term.
(b) Termination Either party may terminate this Agreement at any time in the event of a breach by the other party of any terms or conditions of this Agreement, if the breaching party fails to correct the breach within thirty (30) days of receipt of written notice from the other.
(c) Right to Suspend Access If Exponential Labs becomes aware of any potential or actual breach of any of the Terms of Service by Subscriber, Exponential Labs may immediately suspend or terminate the Services.
10. MUTUAL CONFIDENTIALITY
(a) Responsibilities of the Parties Each party undertakes at all times to hold in confidence all Confidential Information of the other party, to it use only for the purposes hereof and not to disclose it to any third party, except with the express written consent of that other party. "Confidential Information" shall include any information, document, material, idea or data which is disclosed by one party to the other party, including but not limited to information regarding a party's personal profile, products and services, technology, business plans, prices, financial information and other trade secrets or confidential information, and anything tangible from which such information may be obtained.
(b) Exceptions Confidential Information shall not include any document, material, idea, data or other information which (i) is known to the receiving party under no obligation of confidence, at the time of disclosure by the other party; (ii) is lawfully obtained by the receiving party from a third party who in making such disclosure breaches no obligation of confidence to the other party; (iii) is or becomes publicly known through no wrongful act of the receiving party; (iv) is independently developed by the receiving party; (v) is disclosed by the other party to a third party under no obligation of confidence; or (vi) is required to be disclosed by government or court order or other legal process, provided that the recipient will take reasonable steps to permit the owner of the information to prevent or limit such compulsory disclosure.
(c) Obligation in the Event of Disclosure In the event of disclosure of Confidential Information to a third party in default of this section, the defaulting party shall use all reasonable efforts to assist the other party in recovering and preventing such third party from using, disclosing, selling or otherwise deposing of such Confidential Information.
11. MISCELLANEOUS
(a) Entire Agreement This Agreement constitutes the entire agreement and understanding between the parties concerning the subject matter hereof, and supersedes all prior negotiations, agreements and commitments (whether oral or in writing). There are no understandings, agreements, representations or warranties, express or implied, other than as herein set forth and incorporated by specific reference in this Agreement. Any modification or amendment shall not be binding upon either party unless it is in writing and signed on behalf of each by a duly authorized representative.
(b) Severability If any term, clause or provision of this Agreement is judged invalid for any reason whatsoever by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to have been deleted from this Agreement.
(c) Survival All accrued payment obligations and any other provisions that by their nature are intended to or must survive in order to give effect to their meaning (including, without limitation, sections 3(a), 5(a), 6(d), 7, 8, 10 and 11, shall survive the expiration or termination of this Agreement.
(d) Headings The headings in this Agreement are for ease of reference only and shall not affect its interpretation.
(e) Applicable Law This Agreement shall be construed according to the laws of the Province of Ontario, Canada. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded.
(f) Jurisdiction of Disputes The exclusive jurisdiction for any disputes under this Agreement shall be a court of competent jurisdiction in the Province of Ontario, Canada.
(g) Marketing and Public Relations Subscriber agrees that during the term of this Agreement, Exponential Labs may publicly refer to Subscriber, orally and in writing, as a Subscriber of Exponential Labs.
(h) Limitation Period No action, regardless of form, arising from this Agreement or any Services provided or to be provided hereunder may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment may be brought at any time.
(i) Force Majeure Neither party shall be liable for any failure or delay in performing its obligations under this Agreement, other than payment obligations, due to causes outside its reasonable control. This includes, without limitation, failure or malfunction of computer equipment or software, interruption in communication services, lack of Internet access, accidents, acts of God, acts of war, fire, flood or other disasters, strikes or other labour disputes and legislation or regulations of any government or governmental agency. Nothing in this section shall prevent a party from terminating this Agreement pursuant to Section 9.
(j) Assignment Subscriber shall not assign or transfer this Agreement without the express written permission of Exponential Labs. Exponential Labs may assign or subcontract all or part of its obligations hereunder.
(k) Dispute Resolution If any disputes, disagreements, controversies, questions or claims arise out of or relate to this Agreement, including, without limitation, with respect to its formation, execution, validity, application, interpretation, performance, breach, termination or enforcement ("Disputes"), without prejudicing any rights the parties may have, including termination of this Agreement, the parties agree that they will attempt to resolve the Dispute by negotiation between their authorized representatives, who shall meet to discuss and attempt in good faith to resolve any such Disputes. If the Dispute cannot be resolved by the parties within five (5) days of the date on which the parties begin in good faith to resolve the Dispute, then either party may submit the Dispute to mediation. The parties will jointly appoint a mediator. If the parties are unable to agree on the selection of a mediator within ten (10) days after the Dispute is submitted to mediation, then either party may refer the dispute to binding arbitration. The parties agree to participate in good faith in mediation and any related negotiation for a period of not less than ten (10) and not more than thirty (30) days in accordance with the procedures directed by the mediator. All conduct, opinions and statements made in the course of the mediation are confidential. No party will call the mediator as a witness for any purpose in any arbitral or judicial proceeding, nor will any party seek access to any documents prepared for or delivered to the mediator or any notes or records of the mediator in any proceeding. Evidence that is otherwise admissible or discoverable will not be rendered inadmissible or non-discoverable as a result of its presentation or use in the mediation. Each party will bear equally the cost of the mediation. If no settlement is reached by negotiation or mediation according to the preceding provisions of this Section, the parties agree to submit to arbitration by a single arbitrator according to the then-current National Arbitration Rules of the ADR Institute of Canada. The place of arbitration procedure will be Toronto, Ontario. The language of the arbitration will be English. The award of the arbitrator shall be final and binding and may be entered and enforced in any court having jurisdiction with respect to the parties.
These Terms of Service shall govern all Services provided by Exponential Labs to the Subscriber.
In consideration of the mutual promises contained herein, Exponential Labs and Subscriber agree as follows:
1. DEFINITIONS
In this Agreement:
"Agreement" means this agreement, consisting of these Terms of Service and Services Description outlined in the Pricing Plan;
"Documentation" means all written, electronic, online, user manuals, reference guides and other documentation provided, or made available, by Exponential Labs to Subscriber under this Agreement;
"Effective Date" means the date on which Exponential Labs shall commence providing Services, as specified in the Pricing Plan.
"Pricing Plan" means the description of the services to be provided by Exponential Labs that was contained in, or referenced by, the Pricing Plan on the Website
"Services" means those services that Exponential Labs provides to Subscriber pursuant to this Agreement, as described in the Pricing Plan;
"Term" means the term of this Agreement as defined in section 9;
"Terms of Service" means those provisions governing Subscriber's access to, and use of, the Services. The Terms of Service shall consist of (i) this Agreement and (ii) each policy statement, legal notice, and/or disclaimer which is marked "Legal Notices" and posted by Exponential Labs on the Website; and
"Website" means the website accessible on the internet at www.plusdemographics.com.
2. SERVICES
(a) Exponential Labs shall provide to Subscriber the Services described in the Pricing Plan
(b) Non-Exclusive Licence Subject to these Terms of Service, and upon payment by the Subscriber of all amounts owing hereunder, Exponential Labs grants to Subscriber a non-exclusive, non-assignable, and non-transferable licence during the Term to access and use the Services and any data generated thereby.
(c) Designation of Contacts Subscriber shall designate a primary contact and may also designate an alternate contact, and may change the contacts from time to time by written notice to Exponential Labs. The designated contacts shall have the responsibility for communicating with and providing necessary assistance to Exponential Labs during the term of this Agreement.
(e) Compliance with Policies Subscriber shall at all times comply with the Legal Notices posted on the Website from time to time.
3 SUBSCRIBER CONTENT
(a) Subscriber Content Subscriber shall be solely responsible at all times for all Subscriber Content
4. EXPONENTIAL LABS INTELLECTUAL PROPERTY
(a) Exponential Labs Property All, software, logos, graphics, designs, text, images, animations, applets, web pages audio, video, multimedia, and other components forming part of the Services or Documentation ("Exponential Labs Property") are proprietary to Exponential Labs or Exponential Labs' licensors, are protected by domestic and international laws and treaties, and shall remain the sole property of Exponential Labs or Exponential Labs' licensors. For greater certainty, Exponential Labs Property shall not include any Subscriber Content provided by Subscriber.
5. FEES
(a) Payment by Subscriber Subscriber shall pay Exponential Labs the amounts specified in the Services Description, plus all applicable taxes.
6. LIMITED WARRANTY
(a) Warranties Exponential Labs warrants that the Services shall be provided in a proper and workmanlike manner, consistent with prevailing industry standards.
(b) Service Levels Exponential Labs shall use reasonable efforts to provide the Services at all times except during scheduled backup and maintenance windows and to complete maintenance or upgrades during Exponential Labs' scheduled site or network maintenance and backup windows. Exponential Labs shall not be responsible for unavailability of any Services due to Subscriber or third-party network or communications failure. In the event of an interruption of Services due to a failure of Exponential Labs' equipment or software, Exponential Labs shall use reasonable efforts to restore the Services within a reasonable period of time.
(c) SERVICES PROVIDED AS IS EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, USE OF THE SERVICES AND DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND.
(d) DISCLAIMERS EXPONENTIAL LABS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND ANY WARRANTIES ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. EXPONENTIAL LABS DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION OR THAT THEY WILL MEET SUBSCRIBER'S REQUIREMENTS. SUBSCRIBER ASSUMES THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICES.
7. LIMITATION OF LIABILITY
(a) Limited Liability To the maximum extent permitted by applicable law, in no event shall Exponential Labs or its suppliers be liable for any consequential, special, incidental or punitive damages whatsoever (including, without limitation, damages for loss of revenue or profits, donations, business interruption or loss of business information) arising out of or related to this Agreement or the use, quality, or performance of the Services, even if Exponential Labs has been advised of the possibility of such damages and regardless of the legal basis for relief.
(b) Limit Exponential Lab's entire liability to Subscriber shall not exceed the amount paid to Exponential Labs by Subscriber under this Agreement during the year preceding the initiation of any claim by Subscriber for damages arising out of, or related to, this Agreement.
(c) Scope of Limitation Notwithstanding any other provision of the Agreement, the foregoing exclusions and limitations shall apply regardless of the nature of the loss or damages or the legal basis of any claim, whether made in contract, tort, strict liability or any other legal theory or cause of action, whether legal or equitable. The foregoing exclusions and limitations shall survive the expiry or termination of this agreement, regardless of cause, including breach of a fundamental term or condition or fundamental breach.
(d) Fee Acknowledgement Subscriber acknowledges that the fees charged by Exponential Labs under this Agreement contemplate the allocation of risks contained in this Agreement.
8. INDEMNITY
(a) Subscriber Indemnity Subscriber shall indemnify and hold Exponential Lab's harmless from any and all claims, actions, damages, liabilities, costs and expenses suffered or incurred by Exponential Labs arising from Subscriber's use of the Services or any breach of the terms of this Agreement by Subscriber whether in tort, contract, intellectual property or otherwise, including without limitation any claims or damages caused by: (i) willful acts or negligence of Subscriber or any of its employees, agents or representatives; or (ii) the use or copying by Exponential Labs in accordance with this Agreement of any Subscriber Content.
9. TERM AND TERMINATION
(a) Term Unless earlier terminated as set forth herein, the initial term of this Agreement shall commence on the Effective Date and continue for the period of time set forth in the Services Description (the "Initial Term"). Subject to paragraph 9(b), this Agreement shall automatically be renewed for a further term set forth in the Services Description (the "Renewal Term") at the end of the Initial Term and each Renewal Term, unless either party gives the other party written notice of termination at three (3) days prior to the end of the Initial Term or least thirty (30) days prior to the end of the of the then-current Renewal Term.
(b) Termination Either party may terminate this Agreement at any time in the event of a breach by the other party of any terms or conditions of this Agreement, if the breaching party fails to correct the breach within thirty (30) days of receipt of written notice from the other.
(c) Right to Suspend Access If Exponential Labs becomes aware of any potential or actual breach of any of the Terms of Service by Subscriber, Exponential Labs may immediately suspend or terminate the Services.
10. MUTUAL CONFIDENTIALITY
(a) Responsibilities of the Parties Each party undertakes at all times to hold in confidence all Confidential Information of the other party, to it use only for the purposes hereof and not to disclose it to any third party, except with the express written consent of that other party. "Confidential Information" shall include any information, document, material, idea or data which is disclosed by one party to the other party, including but not limited to information regarding a party's personal profile, products and services, technology, business plans, prices, financial information and other trade secrets or confidential information, and anything tangible from which such information may be obtained.
(b) Exceptions Confidential Information shall not include any document, material, idea, data or other information which (i) is known to the receiving party under no obligation of confidence, at the time of disclosure by the other party; (ii) is lawfully obtained by the receiving party from a third party who in making such disclosure breaches no obligation of confidence to the other party; (iii) is or becomes publicly known through no wrongful act of the receiving party; (iv) is independently developed by the receiving party; (v) is disclosed by the other party to a third party under no obligation of confidence; or (vi) is required to be disclosed by government or court order or other legal process, provided that the recipient will take reasonable steps to permit the owner of the information to prevent or limit such compulsory disclosure.
(c) Obligation in the Event of Disclosure In the event of disclosure of Confidential Information to a third party in default of this section, the defaulting party shall use all reasonable efforts to assist the other party in recovering and preventing such third party from using, disclosing, selling or otherwise deposing of such Confidential Information.
11. MISCELLANEOUS
(a) Entire Agreement This Agreement constitutes the entire agreement and understanding between the parties concerning the subject matter hereof, and supersedes all prior negotiations, agreements and commitments (whether oral or in writing). There are no understandings, agreements, representations or warranties, express or implied, other than as herein set forth and incorporated by specific reference in this Agreement. Any modification or amendment shall not be binding upon either party unless it is in writing and signed on behalf of each by a duly authorized representative.
(b) Severability If any term, clause or provision of this Agreement is judged invalid for any reason whatsoever by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to have been deleted from this Agreement.
(c) Survival All accrued payment obligations and any other provisions that by their nature are intended to or must survive in order to give effect to their meaning (including, without limitation, sections 3(a), 5(a), 6(d), 7, 8, 10 and 11, shall survive the expiration or termination of this Agreement.
(d) Headings The headings in this Agreement are for ease of reference only and shall not affect its interpretation.
(e) Applicable Law This Agreement shall be construed according to the laws of the Province of Ontario, Canada. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded.
(f) Jurisdiction of Disputes The exclusive jurisdiction for any disputes under this Agreement shall be a court of competent jurisdiction in the Province of Ontario, Canada.
(g) Marketing and Public Relations Subscriber agrees that during the term of this Agreement, Exponential Labs may publicly refer to Subscriber, orally and in writing, as a Subscriber of Exponential Labs.
(h) Limitation Period No action, regardless of form, arising from this Agreement or any Services provided or to be provided hereunder may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment may be brought at any time.
(i) Force Majeure Neither party shall be liable for any failure or delay in performing its obligations under this Agreement, other than payment obligations, due to causes outside its reasonable control. This includes, without limitation, failure or malfunction of computer equipment or software, interruption in communication services, lack of Internet access, accidents, acts of God, acts of war, fire, flood or other disasters, strikes or other labour disputes and legislation or regulations of any government or governmental agency. Nothing in this section shall prevent a party from terminating this Agreement pursuant to Section 9.
(j) Assignment Subscriber shall not assign or transfer this Agreement without the express written permission of Exponential Labs. Exponential Labs may assign or subcontract all or part of its obligations hereunder.
(k) Dispute Resolution If any disputes, disagreements, controversies, questions or claims arise out of or relate to this Agreement, including, without limitation, with respect to its formation, execution, validity, application, interpretation, performance, breach, termination or enforcement ("Disputes"), without prejudicing any rights the parties may have, including termination of this Agreement, the parties agree that they will attempt to resolve the Dispute by negotiation between their authorized representatives, who shall meet to discuss and attempt in good faith to resolve any such Disputes. If the Dispute cannot be resolved by the parties within five (5) days of the date on which the parties begin in good faith to resolve the Dispute, then either party may submit the Dispute to mediation. The parties will jointly appoint a mediator. If the parties are unable to agree on the selection of a mediator within ten (10) days after the Dispute is submitted to mediation, then either party may refer the dispute to binding arbitration. The parties agree to participate in good faith in mediation and any related negotiation for a period of not less than ten (10) and not more than thirty (30) days in accordance with the procedures directed by the mediator. All conduct, opinions and statements made in the course of the mediation are confidential. No party will call the mediator as a witness for any purpose in any arbitral or judicial proceeding, nor will any party seek access to any documents prepared for or delivered to the mediator or any notes or records of the mediator in any proceeding. Evidence that is otherwise admissible or discoverable will not be rendered inadmissible or non-discoverable as a result of its presentation or use in the mediation. Each party will bear equally the cost of the mediation. If no settlement is reached by negotiation or mediation according to the preceding provisions of this Section, the parties agree to submit to arbitration by a single arbitrator according to the then-current National Arbitration Rules of the ADR Institute of Canada. The place of arbitration procedure will be Toronto, Ontario. The language of the arbitration will be English. The award of the arbitrator shall be final and binding and may be entered and enforced in any court having jurisdiction with respect to the parties.