1.              Introduction

(a)           This Scotiabank Developer Agreement (“Agreement”) is an agreement between you and The Bank of Nova Scotia, including its affiliates and designees (collectively referred to herein as “Scotiabank”, “we” or “us”), and applies to your access to and use of the Scotiabank Developer Portal (the “Portal”). By registering for, accessing and/or using the Portal, you acknowledge that you have read, understood and agree to be bound by the terms of this Agreement (these “Terms”).

(b)           The Portal is offered by Scotiabank and includes a collection of application programming interfaces from Scotiabank’s businesses using simulated test data.

(c)            If you are using the Portal on behalf of another person, including a corporation or other entity or organization (“Person”), you confirm  your agreement that both you and the other Person will be bound by these Terms and any references to “you” or “your” will be references to you and any such other Person.

(d)           IF YOU DO NOT ACCEPT THESE TERMS, YOU ARE NOT PERMITTED TO ACCESS OR USE THE PORTAL.

2.              Definitions

(a)           “API” means each of Scotiabank’s proprietary application programming interfaces and any applicable API Documentation or other API materials made available to you by us, including any Updates and related software.

(b)           “API Documentation” means the API documentation made available to you by us from time to time.

(c)            “Application(s)” means the software application, website, or other interface that you develop or that you otherwise use that interacts with the Portal.

(d)           “Test Environment” means the “sandbox” (test) environment of the Portal as such environment may be offered by Scotiabank from time to time.

(e)           “Updates” means any updates, bug fixes, patches, or other error corrections to the API that we generally make available to all licensees of the API.

(f)             “Your Users” mean customers that have entered into a relationship with you to purchase goods or services, or end-users of your Application, product, services or other offering.

3.              License, Retained Rights and Intellectual Property

(a)           Upon allowing you to access and use the Portal, we grant you a limited, non-exclusive, non-transferable, non-sub-licensable, and revocable license to access and use the Portal, subject to these Terms, solely for purposes of developing, testing, and using Applications in the Portal’s simulated Test Environment. This license and your use of the Portal are also subject to all instructions and documentation (including the API Documentation) that, we may in our sole discretion, make available in connection with the Portal. These Terms do not grant you any right or license to conduct or process transactions using our services or systems, or authorize Persons outside your organization to access or use the Portal.

(b)           You must comply with the implementation and use requirements contained in all API Documentation. If you do not comply with our implementation and use requirements you will be liable for all resulting damages suffered by you, Scotiabank and third parties.

(c)            We may change or discontinue any APIs without notice to you.

(d)           The Portal is integrated with or may otherwise interact with third-party software applications, websites, devices, tools, and services (“Third Party Applications”). These Third Party Applications may have their own license terms and conditions and privacy policies, and your use of these Third Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that Scotiabank does not endorse and is not responsible or liable for the behavior, features, or content of any Third Party Applications or for any transaction you may enter into with the provider of any such Third Party Applications. Scotiabank does not warrant the compatibility or continuing compatibility of the Third Party Applications with the Portal.

(e)           We retain the right to terminate the license granted under these Terms at any time, without notice to you. If you violate these Terms, this license will automatically terminate. Without prior notice and for any reason, we can suspend or terminate your access to the Portal.

(f)             Except as expressly provided herein, all right, title and interest in and to the Portal (including any API Documentation for the Portal) and any Updates, modifications, derivative works or upgrades shall remain exclusively with us. You may not use any copyrights, patents, names, trade names, trademarks, service marks, slogans, logos, domain names, or other indicia of Scotiabank or other intellectual property rights owned or developed by us, unless otherwise approved by us in writing. You may not refer to Scotiabank or the Portal in advertising, publicity releases, or promotional or marketing publications or correspondence or claim or imply in any way that your Applications are created, certified, sponsored, or endorsed in any manner by Scotiabank. You will not take any steps, or provide any assistance, directly or indirectly, to any third party, to dispute or contest the validity of any Scotiabank intellectual property rights. We reserve all rights in the Portal not expressly granted to you under these Terms.

(g)           If you provide us comments, feedback, suggestions, concepts, changes, or ideas regarding the Portal (“Comments”), you agree that any such Comments shall be exclusively owned by us free of charge, and you hereby assign to us all your right, title and interest in such Comments. We may develop technology, modifications, corrections, or improvements based on such Comments, all of which, including any and all intellectual property rights therein, shall be owned exclusively by us. You agree to enter into such further agreements and provide such additional documentation as may reasonably be required to confirm such ownership.

(h)           As between you and Scotiabank, you will own the intellectual property rights in your Applications. You understand and agree that we may independently create applications, content, and other products or services that may be similar to or competitive with your Applications and their content. Nothing in these Terms will restrict or prevent us from creating and fully utilizing such applications, content, and other products or services, without any obligation to you.

4.              Access to and Use of Portal

(a)           To gain access to the Portal, you may request access to the Portal by contacting Scotiabank through the portal registration process. We will review your request and may request that you provide us with additional information in connection with your request. Upon approval of your request, we will send you registration and authorization codes so that you may register for an account. This will involve you providing us with certain information, and for you to create login credentials, including a username and password.

(b)          You and your authorized developers and users are responsible for maintaining the confidentiality and security of your login credentials and will immediately notify us of any potential or actual related breach or disclosure of such information. You may not sell, transfer, assign, sublicense, or otherwise disclose your login credentials or use login credentials for any other purpose than as authorized under these Terms. You are responsible for maintaining up-to-date and accurate information (including a current e-mail address and other required contact information) for your accounts. As a condition to register and receive login credentials, we may require you to submit certain information to authenticate your identity. You agree to comply with all security requirements that we may require or publish from time to time in connection with the Portal.

(c)            We reserve the right to add to, modify, or discontinue the Portal or to restrict or terminate your access to the Portal, in whole or in part, at any time without notice to you. Modifications to the Portal or Scotiabank’s services and systems may affect your Applications, which may require you to change your Applications at your own cost. We will have no liability or obligation to you for any modifications or changes we make to the Portal or our services or systems. While we currently make the Portal available without charge to developers, we may in the future charge for access to or use of the Portal or at any time, at which point we will notify you in accordance with these Terms. To the extent we notify you of fees that will be payable under these Terms, your continued use of the Portal after the receipt of such notification will be deemed to be your acceptance of the fees that are payable and the terms and conditions pursuant to which they will be paid.

(d)           You agree that we may monitor and audit your Applications and activities relating to your use of the Portal. You will promptly provide us with access, free of charge, to your Applications and any other information that we may request from you from time-to-time regarding use and operation of the Portal or your Applications to verify your compliance with these Terms. If you fail to provide this access, we may terminate your use of any and all login credentials immediately.

(e)           By using the Portal, you acknowledge and agree that we may place cookies on the computer(s) or device(s) you use to access the Portal. Cookies help us confirm your identity and help us keep your transactions secure. Scotiabank also uses cookies for various purposes such as maintaining continuity during an online session, gathering data about your use of the Portal and other websites, or optimizing the performance of the Portal.

(f)             These Terms relate exclusively to the development and testing of Applications within the Test Environment. You will only be granted access to our production environment if: (i) certain standards and specifications, as determined by us, are satisfied; and (ii) you and Scotiabank have entered into a separate agreement for the use of your Application(s) in our production environment. You acknowledge that Scotiabank is under no obligation to grant you access to a production environment.

(g)           We have no obligation to provide maintenance or support for, or to users of, the Portal, including without limitation, training or other assistance.

5.              Prohibited Uses

You shall not, and shall not cause or permit any third party to:

(a)           use the Portal in any way other than in accordance with these Terms and all instructions and documentation (including the API Documentation) we may make available in connection with the Portal;

(b)           use the Portal, either directly or indirectly, to develop any product or service that competes with the Portal or provides functionality similar to the Portal;

(c)            disassemble, decompile, decrypt, extract, reverse engineer or modify the Portal, or otherwise apply any procedure or process to the Portal in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Portal or any algorithm, process, procedure or other information contained in the Portal, except as otherwise specifically authorized in accordance with these Terms or the instructions and documentation (including the API Documentation) we may make available in connection with the Portal;

(d)           provide access to or the use of the Portal to any third party, other than to your organization’s authorized employees, agents, sub-agents and contractors who have a reasonable need for such access or use and are subject to these Terms or obligations that are no less restrictive than these Terms;

(e)           store the Portal, or any part thereof, to your own or a third party’s systems or storage devices;

(f)             make any copies of documentation (including the API Documentation) we may make available in connection with the Portal, except as is incidental to the purposes of the Portal and these Terms, or for archival purposes (any such copies shall contain all appropriate proprietary notices);

(g)           rent, lease, assign, sublicense, transfer, distribute, allow access to (other than as permitted in these Terms), or time share the Portal or any aspect thereof, or use the Portal as a component of products or services prepared for commercial sale, sublicense, lease, access, or distribution;

(h)           circumvent or attempt to circumvent any applicable security measures of the Portal, or access or attempt to access portions of the Portal not authorized for your use;

(i)             transmit any viruses, worms, defects, Trojan horses, or any programming of a destructive nature, or in any other way damage, impede, or disrupt our services or systems, or attempt to do any of the foregoing;

(j)             use robots, spiders, crawlers, scraping or other similar technology to use any Scotiabank sites or services to obtain any information beyond that which we provide to you under these Terms;

(k)            use the Portal in a manner that exceeds reasonable request volume or usage, or otherwise is inconsistent with any part of these Terms or the Portal documentation (including the API Documentation);

(l)             use the Portal to create Applications that offer or promote services that may be damaging or otherwise detrimental to us or our customers;

(m)         distribute, publish, or allow access or linking to the Portal from any location or source other than your Applications;

(n)           remove any copyright notice or other Scotiabank source identifier contained in the Portal;

(o)           submit any content through the Portal that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or otherwise objectionable; or

(p)           use the Portal in any unlawful way or for any unlawful purpose.

6.              Scotiabank Confidential Information

(a)                The Portal and our communications to you regarding the Portal may contain Scotiabank Confidential Information. You will treat all Scotiabank Confidential Information as strictly confidential and not use or disclose any Scotiabank Confidential Information without our prior written consent. You will use the same degree of care to prevent disclosure of Scotiabank Confidential Information as you would use with respect to your own most confidential and proprietary information. All Scotiabank Confidential Information is and remains our property, and upon termination of these Terms or upon our written request at any time, you will destroy or return to us all Scotiabank Confidential Information in your custody or control and certify in writing to us that you have complied with the obligations set forth in this paragraph. The obligations of this confidential information section shall continue indefinitely after the termination of these Terms.

(b)                “Scotiabank Confidential Information” includes (i) the APIs and all other tools and information that we make available to you on the Portal, (ii) all of the information we provide to you for your use in connection with these Terms or the Portal, including the API Documentation, (iii) blogs, discussion areas, forums, programming, and software development kits provided by us or on our behalf, (iv) processes, programs, testing procedures, software design and architecture, computer code, design and function specifications, product requirements, problem reports, analysis and performance information, and (v) any other information that is (1) marked “confidential” or other similar marking, (2) known by you to be considered confidential and proprietary by us, or (3) received by you under circumstances reasonably interpreted as imposing an obligation of confidentiality.

7.                   Your Representations & Warranties

(a)                You represent and warrant to us that (i) the information you and your developers provide us in connection with your registration and use of the Portal and your Applications is true and correct in all material respects, (ii) you own or have properly licensed all rights necessary to develop, distribute, and use your Applications and any content you submit to or use in connection with the Portal, (iii) your Applications and any content you submit to us, including any Comments, or use in connection with the Portal will not infringe the intellectual property, privacy, or publicity rights of any third party, and (iv) your use of the Portal will comply with these Terms and all national, federal, state, provincial and local laws (including common law), ordinances, regulations, and codes.

8.                   Limitation of Liability

(a)                NEITHER SCOTIABANK NOR ANY OF ITS THIRD PARTY PROVIDERS MAKES ANY WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE PORTAL. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PORTAL IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AT YOUR SOLE RISK. SCOTIABANK AND ITS THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING ANY WARRANTY FOR THE USE OR THE RESULTS OF THE USE OF THE PORTAL WITH RESPECT TO ITS CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS, OR CONTINUED AVAILABILITY. NEITHER SCOTIABANK NOR ANY OF ITS THIRD PARTY PROVIDERS SHALL HAVE ANY RESPONSIBILITY TO MAINTAIN THE PORTAL OR TO SUPPLY ANY CORRECTIONS, UPDATES, OR RELEASES IN CONNECTION THEREWITH. AVAILABILITY OF THE PORTAL IS SUBJECT TO CHANGE WITHOUT NOTICE.

(b)                YOU ACKNOWLEDGE THAT ELECTRONIC ACCESS TO SYSTEMS THROUGH THE INTERNET OR OTHER NETWORKS, WHETHER PUBLIC OR PRIVATE, MAY NOT BE SECURE. NEITHER SCOTIABANK NOR ANY OF ITS THIRD PARTY PROVIDERS MAKES ANY WARRANTY WHATSOEVER TO YOU, EXPRESS OR IMPLIED, REGARDING THE SECURITY OF THE PORTAL, INCLUDING WITH RESPECT TO THE ABILITY OF UNAUTHORIZED PERSONS TO INTERCEPT OR ACCESS INFORMATION TRANSMITTED BY YOU, AND SCOTIABANK AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL LIABILITY FOR ANY SECURITY BREACH.

(c)                 IN NO EVENT SHALL SCOTIABANK, ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SERVICE PROVIDERS HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON FOR ANY CLAIM OR DAMAGE OF ANY KIND (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF, OR RELATING TO, SCOTIABANK’S PROVISION OF THE PORTAL OR YOUR ACCESS TO OR USE THEREOF.

(d)                WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL SCOTIABANK, ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SERVICE PROVIDERS HAVE ANY LIABILITY TO YOU OR ANY PERSON OR COMPANY FOR INDIRECT LOSSES, OR SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR OR CHARACTERIZED AS LOST BUSINESS, PROFITS, OR REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF SCOTIABANK OR ANY SUCH OTHER PARTY IS AWARE OF THE POSSIBILITY OF, OR COULD REASONABLY FORESEE, SUCH DAMAGES.

(e)                In addition to any other limitations on liability contained herein or in any other agreement between you and us, to the extent permitted by applicable law, Scotiabank’s cumulative liability to you for all loss or damage arising from or relating to the Portal or these Terms, regardless of the form of action, is limited to the lesser of: (i) $1,000 or (ii) the amount paid by you to us for access to and use of the Portal.

(f)                  The provisions of this Limitation of Liability section shall survive termination of these Terms and the license granted herein.

9.                   Indemnification

(a)                You agree to indemnify, defend, and hold harmless Scotiabank, its affiliates, and each of its and their respective officers, directors, employees, agents, and service providers from and against any and all actions, losses, damages, claims, demands, liabilities, costs, or expenses, including court costs and reasonable attorneys’ fees and expenses, resulting directly or indirectly from: (i) your access to and use of the Portal (including any use or misuse by your employees or agents), (ii) your Applications (including any claim, cost, and liability related to your Applications) and any content (including your Comments) you submit to or use in connection with the Portal, (iii) your breach of these Terms, or (iv) your violation of any applicable laws or the rights of a third party. The provisions of this Indemnification section shall survive termination of these Terms and the license granted herein.

10.               Governing Law, Venue, Waiver of Jury Trial

(a)                This Agreement shall be subject to the laws of the Province of Ontario and the laws of Canada Applicable therein.  For the purpose of all legal proceedings, this Agreement will be deemed to have been made and performed in the Province of Ontario and the courts of the Province of Ontario will have exclusive jurisdiction to entertain any action arising under this Agreement.  Each party each hereby attorns to the jurisdiction of the courts of the Province of Ontario.  To the extent permitted by Applicable Laws, each party hereby waives the right to trial by jury of any such suit, action or proceeding.

11.               Modifications to Terms

(a)                We reserve the right to modify these Terms at any time upon notice to you, including via the e-mail address we have on file or by posting notice of the amendment on the Portal. If you find the Terms unacceptable at any time, you must discontinue your use of the Portal. By continuing to access or use the Portal after the date of any change to these Terms, you agree to be bound by the provisions contained in the most recent version of these Terms.

12.               Export Restrictions

(a)                In connection with your use of the Portal, you are solely responsible for complying with all applicable export, re-export, and import control laws and regulations of all applicable jurisdictions, including, but not limited to, those of the U.S. Department of Commerce, Export Administration Regulations, 15 CFR Parts 730-774, country-specific economic sanctions programs implemented by the Office of Foreign Assets Control, and export and import control laws and regulations of any other countries.

13.               Privacy Laws

(a)                Laws on privacy vary greatly between different countries. You must follow the laws of the country in which Your Users reside, in addition to any privacy laws that may apply to you as a resident of your country.

(b)                You acknowledge that Canadian federal and/or provincial legislation that addresses the protection of individuals’ personal information (collectively, “Privacy Laws”) may apply to the use of the Portal and its related services, products, documentation and software and the duties and obligations under this Agreement. Despite any other provision under these Terms, neither party shall take or direct any action that would contravene, or cause the other to contravene, applicable Privacy Laws. You shall, prior to transferring or causing to be transferred personal information to us, obtain and retain required consents from the relevant individuals to the collection, use and disclosure of their personal information, or shall have determined that such consents either have previously been given upon which the parties can rely or are not required under the Privacy Laws.

14.               Miscellaneous

(a)                These Terms, together with all instructions and documentation we may make available in connection with the Portal, constitute the entire agreement between you and us with respect to your access to and use of the Portal and supersede and replace any previously made proposals, representations, warranties or agreements, express or implied, either oral or in writing.

(b)                No party’s failure or delay in exercising any right or remedy under these Terms will operate as a waiver of such right or remedy, and no single or partial exercise by a party of any right or remedy under these Terms will preclude any additional or further exercise of such right or remedy or the exercise of any other right.

(c)                 You may not assign or transfer these Terms or any of its obligations or rights hereunder to any other Person. Any such purported assignment by you without our written consent is void.

(d)                If a provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the other provisions hereof will not be affected or impaired by such holding.

(e)                Except as explicitly provided herein, these Terms are not for the benefit of any other Person and no other Person shall have any right against you or us hereunder. These Terms do not create a joint venture, co-ownership, partnership, or agency relationship between you and us.

(f)                  Your breach of these Terms relating to the licenses we grant to you or your unauthorized use of Scotiabank Confidential Information may result in irreparable harm and permanent injury to us for which monetary damages would be an inadequate remedy. In such circumstances, we will be entitled to seek and obtain, without the posting of a bond, in addition to all other remedies available to us at law or in equity, immediate injunctive relief to prevent or stop any breach of those provisions.

15.               English Language (Canada)

(a)                You and we have expressly requested that these Terms, the Portal, and all related documents, including notices, be drawn up in the English language. Vous et nous avons expressément demandé que cette entente, le portail “Portal” et tout document y afférent, y compris tout avis, soient rédigés en langue anglaise (Quebec only / Québec seulement).