12768950 Canada Limited dba reDock (“Company”) owns certain Software (as defined herein) that it has developed and makes commercially available to its customers for use as a cloud based, hosted service offering (the “Service”, as more fully defined below).
In connection with the use of the Service you and/or your organization or corporation (the “Customer”) hereby agree to the terms of service and conditions contained herein (collectively, the “Terms of Service”).
IF YOU ARE AN AGENT OR EMPLOYEE OF THE CUSTOMER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON CUSTOMER’S BEHALF AND TO BIND THE CUSTOMER, AND (II) THE CUSTOMER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
In this Agreement:
1.1 “Agreement” means the applicable Order Form and these Terms of Service.
1.2 “Customer” means the customer named in the applicable Order Form.
1.3 “Customer Data” means the data submitted by or for Customer to the Service or collected and processed by or for Customer using the Service, including the data of Customer’s employees, contractors or customers.
1.4 “Data Controller” shall mean the natural or legal person who alone or jointly with others determines the purposes and means of the processing of Personal Information.
1.5 “Data Processor” shall mean the natural or legal person who processes Personal Information on behalf of the Data Controller.
1.6 “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation), the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including the GDPR, applicable to the Processing of Personal Information under the Agreement.
1.7 “Data Subject” means the identified or identifiable person to whom Personal Information relates.
1.8 “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes, if any, that Company generally makes available to subscribers to the Service, as the case may be.
1.9 “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Information and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
1.10 “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.11 “Order Form” means (i) the electronic form provided by Company on its website for ordering Service Subscriptions, or (ii) the written document executed by Company and Customer in respect to Customer’s purchases of Service Subscriptions from Company.
1.12 “Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
1.13 “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.14 “Service” means the cloud-based hosted version of the Software for which Customer is granted rights of access and use in accordance with this Agreement, where specified in an Order Form, which resides on a server operated by or on behalf of Company and which will be remotely accessible over the Internet by Customer and its Users, including any ancillary services available in connection therewith, as such Service may be updated from time to time by Company in its sole discretion.
1.15 “Software” means the Company’s proprietary reDock software program(s) using artificial intelligence (AI) and machine learning to automate content and data search tasks, in machine-readable object code format and other related software specified in an Order Form, including the Documentation for such program(s) and which is made available by Company as a Service for use by Customer in accordance with the terms hereof.
1.16 “Subscription” means the right granted by Company to Customer to access and use the Service in accordance with these Terms of Service and the applicable Order Form, for the Subscription Term specified in the applicable Order Form.
1.17 “Subscription Fee” means the fee payable by Customer for a Subscription as set out in the applicable Order Form.
1.18 “Subscription Term” means the period of time that Customer is authorized by Company to access and use the Service (including the Documentation), as set forth in Section 14.1.
1.19 “Support Services” means the technical support services for the Service provided by Company.
1.20 “User” means an employee or authorized consultant or contractor of Customer to whom Customer (or Company at Customer’s request) has supplied a user identification and password.
2. The Service
2.1 Onboarding and Training Services. To the extent provided for in the applicable Order Form, Company will use commercially reasonable efforts to provide Customer with onboarding and training services. Unless indicated otherwise in the applicable Order Form, all onboarding and training services will be performed on a time and materials basis at Company’s then-current standard rates.
2.2 Right to Use the Service. Subject to the terms and conditions of this Agreement (including the applicable Order Form) and payment of the applicable Subscription Fees, Company hereby grants to Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to (a) access and use (and to permit Users to access and use) the Service, solely during the Subscription Term and for Customer’s internal purposes and for its own benefit; and (b) access and use, and to permit Users to access and use, the Documentation as reasonably necessary to support the Customer’s permitted use of the Service during the Subscription Term.
2.3 Reservation of Rights. Company and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Software, Service and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Software and subject to all of the provisions of this Agreement. Customer shall keep the Software and Documentation free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, Company reserves all rights, title and interest in and to the Software and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.
2.4 Restrictions. Customer shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Service or any part of the Service, including but not limited any component which comprises the Service, but not including any output from the Service; (b) knowingly interfere with service to any of Company’s users, host or network, including by means of intentionally submitting a Malicious Code, overloading, flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software, Service and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the Service; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in the Service or Documentation in any form to any person without the written consent of Company; (f) remove any proprietary notices, labels, or marks from the Service or Documentation; (g) create any “links” to or “frame” or “mirror” of the Service or any portion thereof; or (h) use the Service to create, collect, transmit, store, use or process any Customer Data that: (i) Customer does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity).
3. Support Services
3.1 Support Services. During the Subscription Term, Company, or its authorized support partner, will provide Support Services at no additional charge, via telephone at 1-888-338-3448 ext 2 and email email@example.com during our normal business hours on Monday through Friday from 9 a.m. ET to 5 p.m. ET, except for telephone support during statutory holidays observed in the Province of Ontario, Canada. Company shall not be required to provide Support Services if Customer is in default of any of Customer’s obligations under this Agreement.
4. Customer Data and Derivative Data
4.1 Ownership. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Company does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data.
4.2 Rights in Derivative Data. Customer acknowledges and agrees that the Software and the Service utilizes artificial intelligence and machine learning and compiles, stores and uses aggregated data and system usage, learnings from artificial intelligence and machine learning, analytics and diagnostic information to monitor and improve the Software and the Service and for the creation of new products, services and solutions. Customer hereby grants to Company a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license to collect, process and aggregate Customer Data and other such above-mentioned learning information and other such information and data to create anonymized, aggregated data records and use such anonymized and aggregated data, and all modifications thereto and derivatives thereof (“Derivative Data”) to improve the Software and the Service, develop new products, services and solutions, and to understand usage, and for any other business purpose. This Derivative Data is no longer associated with Customer or a User and as such is not Customer Data.
5. Protection of Personal Information
5.1 Customer is Data Controller. In relation to all Personal Information provided by or through Customer to Company under this Agreement, Customer will at all times remain the Data Controller and will be responsible for compliance with all applicable Data Protection Laws. To the extent that Company processes Personal Information in the course of providing the Service and related services under this Agreement, it will do so only as a Data Processor acting on behalf of the Customer (as Data Controller) and in accordance with the requirements of this Agreement.
5.2 Company’s Processing of Personal Information. Company shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. Company shall only Process Personal Information on behalf of and in accordance with Customer’s documented instructions and Data Protection Laws for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Customer’s Users or customers in their use of the Service; and (iii) Processing to comply with other documented reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement.
5.4 Data Subject Request. Company shall, to the extent legally permitted, promptly notify Customer if Company receives a request from a Data Subject to exercise the Data Subject’s right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or its right not to be subject to an automated individual decision making (“Data Subject Request”). Company shall use commercially reasonable efforts to assist Customer by appropriate technical and organizational measures, to fulfill Customer’s obligation to respond to a Data Subject Request under Data Protection Laws and Regulations. Customer shall be responsible for any costs arising from Company’s provision of assistance with a Data Subject Request.
5.5 Data Breach. Upon becoming aware of any unlawful access to any Personal Information, any unauthorized access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Information, or any actual loss of or suspected threats to the security of Personal Information (including any physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage media or printed materials, or other unauthorized access) (each a “Security Incident”), Company will promptly notify Customer of the Security Incident (and in all circumstances at least as soon as it reports to similarly situated customers of Customer, but in any event as soon as reasonably possible in the circumstances), and will investigate or perform required assistance in the investigation of the Security Incident and provide Customer with detailed information about the Security Incident. Company will take all commercially reasonable steps to mitigate the effects of the Security Incident, or assist Customer in doing so; and will provide prior notice to Customer of, and will not undertake any, proposed communications to third parties related to a Security Incident involving Personal Information without Customer’s prior written approval, not to be unreasonably withheld, conditioned or delayed. Company will work with and coordinate with Customer on any such notices in any event. Company will comply with this Section 5.5 at Company’s cost unless the Security Incident arose from Customer’s negligent or willful acts or Company’s compliance with Customer’s express written instructions.
5.6 Subcontracting. Company may engage third party subcontractors to assist in the provision of the Service under this Agreement. Customer authorizes Company to subcontract the processing of Personal Information under this Agreement provided that (i) Company shall maintain a list of such subprocessors and will provide a copy of that list to Customer upon request; and (ii) all subprocessors will be contractually required by Company to abide by substantially the same obligations as Company under this Agreement to protect Personal Information, such that the data processing terms of the subcontract will be no less onerous than the data processing terms set out in this Agreement.
5.7 GDPR Compliance; Impact Assessment. Company shall (a) Process Personal Information in accordance with the GDPR requirements directly applicable to Company and its provision of the Service and related services, and (b) upon Customer’s request, provide Customer with reasonable cooperation and assistance needed to fulfil Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer use of the Service, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Company. Company shall provide reasonable assistance to Customer in the cooperation or prior consultation with Customer’s authorized representative in the performance of its tasks under this Section 5.7, to the extent required under the GDPR.
6. Customer Responsibilities
6.1 Users. Customer is responsible for all activities that occur in User accounts and for its and its Users’ compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the means by which Customer acquired Customer Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software or the Service, and notify Company promptly of any such unauthorized access or use; and (c) use the Service only in accordance with the Documentation and applicable laws and government regulations.
6.2 Use Guidelines. Customer shall use, and shall ensure that all Users use, the Service solely for Customer’s internal business purposes as contemplated by this Agreement and shall not interfere with or disrupt the integrity or performance of the Service or the data contained therein.
6.3 Processing of Personal Information. Customer’s instructions to Company for the Processing of Personal Information shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Customer acquired Personal Information. Customer hereby represents and warrants to, and covenants with Company that Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Company to provide the Service, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to Company and to or from all applicable third parties.
6.4 Equipment. Customer is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Customer to access and use the Service and for all expenses relating thereto. Customer agrees to access and use, and shall ensure that all Users access and use, the Service in accordance with any and all operating instructions or procedures that may be issued by Company from time to time.
6.5 Feedback. Customer may provide reasonable feedback to Company including, but not limited to, suitability, problem reports, suggestions and other information with respect to the Service (“Feedback”). Customer hereby grants to Company a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Software, Service, Documentation and any other Company products or services, or for any other purposes, any Feedback provided by Customer or its Users.
7. Subscription Fees and Payment
7.1 Subscription Fees. Customer shall pay all Subscription Fees specified in the applicable Order Form. Except as otherwise specified in the applicable Order Form, all Subscription Fees are quoted and payable in Canadian dollars ($CAD). Except as otherwise specified herein or in the applicable Order Form, Subscription Fees are based on Subscriptions purchased and not actual usage, payment obligations are non-cancellable, Subscription Fees paid are non-refundable, and the number of Subscriptions purchased cannot be decreased during the relevant Subscription Term stated in an Order Form.
7.2 Invoicing and Payment. Subscription Fees will be invoiced in advance and otherwise in accordance with the applicable Order Form. Unless otherwise stated in the Order Form, charges are due on invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Company.
7.3 Overdue Charges. Any payment not received from Customer by the due date may accrue (except with respect to charges then subject to a reasonable and good faith dispute), at Company’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
7.4 Suspension for Non-Payment. Company may immediately suspend Customer’s Subscription to use the Service if Customer fails to make any payment due in respect of the Service and does not cure such non-payment within ten (10) business days after receiving notice of such failure. Any suspension of the rights hereunder by Company under the preceding sentence shall not excuse Customer from its obligation to make all payment(s) under the Agreement.
7.5 Payment Disputes. Company will not exercise its rights under Sections 7.3 or 7.4 hereof if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. Customer may not withhold or setoff any amounts due under the Agreement.
7.6 Taxes. Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, HST, GST, QST, sales, value-added, excise, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on its income, property and employees.
Company shall have the right, with reasonable notice and during normal business hours, at Company’s sole expense and in as non-disrupting a manner as reasonably possible, to verify Customer’s compliance with Customer’s obligations hereunder through a remote or an on-site audit of Customer’s records, facilities and licensing processes by Company or a third party representative of Company. Customer shall permit up to one such audit per year, including once during the 12 month period following the termination of this Agreement for any reason. Company may use such audit reports solely to enforce its rights hereunder and shall otherwise treat audit reports and any information received in connection with such audits as Confidential Information (as defined below). In the event that an audit establishes that Customer is in material breach of its obligations hereunder, Customer shall reimburse Company for the cost of the audit and shall promptly pay to Company all outstanding Subscription Fees.
9. Confidentiality Obligations
9.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Service and Documentation, Customer Data (which is the Confidential Information of the Customer), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
9.2 Confidentiality. Subject to Section 9.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Subscription Term and only as necessary to perform the Receiving Party’s obligations under this Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and affiliates and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement, and provided that they are bound by confidentiality obligations substantially equivalent to the ones contained in these Terms of Service. Customer shall not disclose any performance, benchmarking, or feature-related information about the Service.
9.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
9.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
9.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate. Receiving Party hereby agrees and covenants not to plead sufficiency of damages in any such proceedings.
9.6 Return of Confidential Information. Upon Disclosing Party’s written request upon expiration or termination of this Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 9.6.
10. Limited Warranties and Disclaimers
10.1 Limited Warranties. Company hereby represents and warrants to Customer that:
(a) During the Subscription Term the Service will perform materially in accordance with the Documentation therefor;
(b) the Service will not contain any Malicious Code;
(c) it owns or otherwise has sufficient rights in the Service and Documentation to grant to Customer the rights to access and use the Service and Documentation granted herein.
10.2 General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE SERVICE; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CUSTOMER DATA TRANSMITTED TO OR FROM COMPANY VIA THE SERVICE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE SERVICE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED. COMPANY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10.3 Internet Connectivity Disclaimer. Company makes the Service available for access via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Service over the Internet. Customer is responsible for and shall ensure that Customer’s computer equipment and an internet connection meets the minimum specifications published by Company in the Documentation and updated from time to time on the Company’s website, and Customer shall periodically update Customer’s computer equipment and/or Internet connection to meet such minimum specifications. Customer hereby acknowledges that the Service may be interrupted due to (a) website downtime for scheduled maintenance at Company’s sole discretion, or (b) interruptions in Internet connectivity or other website downtime caused by circumstances beyond Company’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, or delays involving hardware of software not within Company’s control or network intrusions. Customer hereby acknowledges and agrees that Company shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases Company from any claims relating thereto.
11. Intellectual Property Infringement Indemnification
11.1 Indemnification by Company. Subject to this Agreement, Company shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the Service and Documentation as contemplated hereunder infringes the intellectual property rights of a third party (each an “Infringement Claim”); provided, that Customer (a) promptly gives written notice of the Infringement Claim to Company; (b) gives Company sole control of the defense and settlement of the Infringement Claim (provided that Company may not settle or defend any Infringement Claim unless it unconditionally releases Customer of all liability); and (c) provides to Company, at Company’s cost, all reasonable assistance and information.
11.2 Other Remedies. If (a) Company becomes aware of an actual or potential Infringement Claim, or (b) Customer provides Company with notice of an actual or potential Infringement Claim, Company may (or in the case of an injunction against Customer, shall), at Company’ sole option and determination: (i) procure for Customer the right to continue to use the Service; or (ii) replace or modify the Service with an equivalent or better Service so that Customer’s use is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable, as determined by Company in its sole discretion, terminate the rights granted hereunder to the Customer to access and use the Service and refund to Customer that portion of any prepaid Subscription Fees that is applicable to the period following the termination of the Subscription pursuant to this Section 10.2, less any outstanding fees owed on such affected portion of the Service.
11.3 Exclusions. The indemnity in Section 11.1 does not extend to (1) any Infringement Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service with other products, software or services not provided or approved by Company, if such infringement would have been avoided but for such combination; (2) any Infringement Claim in respect to any version of the Service other than the most current version; or (3) any use, distribution, sublicensing or exercise of any other right outside the scope of this Agreement.
11.4 Limitation. Notwithstanding any other provision of this Agreement, the aggregate liability of Company to Customer under this Agreement shall not exceed the total amount of the Subscription Fees actually paid by Customer in the 12 month period preceding the incident giving rise to Company’s liability. Company agrees to obtain Customer’s consent for any settlement in excess of that amount. In no event shall Company be responsible for any cost, expense or compromise incurred or made by Customer without Company’ prior written consent.
11.5 Sole Remedies. THIS SECTION 11 CONTAINS COMPANY’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIMS.
12. Indemnification by Customer
Customer shall defend, indemnify and hold Company harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against Company by a third party (a) alleging that the Customer Data or Customer’s use of the Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; (b) based on a breach of any Data Protection Laws or a breach of this Agreement; or (c) caused by any negligent act or omission of Customer or its employees, contractors or agents (each a “Customer Indemnified Claim”); provided, that Company (a) promptly gives written notice of the Customer Indemnified Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Customer Indemnified Claim (provided that Customer may not settle or defend any Customer Indemnified Claim unless it unconditionally releases Company of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance and information.
13. Limitation of Liability
13.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).
13.2 Limitation of Liability. SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
13.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS SUBJECT TO THE LIMITATION CONTAINED IN SECTION 11.4 HEREOF), (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.
13.4 Application of Exclusions and Limitations. The foregoing limitations and exclusions of liability shall apply even if a party had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages and shall apply regardless of whether the action arose in contract, including, without limitation, from a fundamental breach, or breach of a condition, fundamental term or warranty, or in tort (including, without limitation negligence) or otherwise. The foregoing provisions limiting the liability of Company shall also apply to its officers, directors, employees, and agents as trust provisions for the benefit of such officers, directors, employees, and agents and shall be enforceable by such persons as trust beneficiaries.
14.1 Term, Renewal. This Agreement commences on the start date specified in the applicable Order Form and shall continue for a period of 1 year until terminated earlier in accordance with the provisions of this Agreement or applicable law. Unless otherwise agreed upon in the applicable Order Form, this Agreement shall automatically renew for successive and additional 1 year period(s) unless Customer gives Company written notice of non-renewal at least sixty (60) days prior to the end of the then current Subscription Term.
14.2 Termination. A party may terminate this Agreement or a Service Subscription for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
14.3 Refund or Payment upon Termination. If this Agreement or a Service Subscription is terminated by Customer in accordance with Section 14.2, Company will refund Customer any prepaid Subscription Fees covering the remainder of the term of the Subscription Term after the effective date of termination. If this Agreement is terminated by Company in accordance with Section 14.2, Customer will pay any unpaid Subscription Fees covering the remainder of the Subscription Term for any current Subscriptions. In no event will termination relieve Customer of its obligation to pay any Subscription Fee payable to Company for the period prior to the effective date of termination.
14.4 Suspension of Access to Service. In addition to any termination rights of Company pursuant to this Agreement, extraordinary circumstances may require Company to suspend or terminate (where appropriate), as determined in Company’s reasonable discretion, Customer’s access to and/or use of, or otherwise modify, the Service in order to: (a) prevent material damages to, or material degradation of the integrity of, Company’s or its provider’s Internet network; or (b) comply with any law, regulation, court order, or other governmental order. Company will notify Customer of such suspension or termination action as far in advance of such suspension or termination as reasonably possible, and if such advance notice is not possible, then as soon as possible after such suspension or termination. In the event of a suspension, Company will limit such suspension to that which is minimally required and will promptly restore Customer’s access to the Service as soon as the event giving rise to the suspension has been addressed (including by Customer agreeing to accept the risks associated with such suspension) or resolved. Unless caused by a breach of this Agreement by Customer: (i) all Subscription Fees related to the Subscription, or other suspended services shall be waived for the duration of the suspension and any such waived Subscription Fees which have been pre-paid shall be refunded to Customer; and (ii) in the event of a termination in connection with this Section 14.4, Customer shall receive a refund of any and all prepaid Subscription Fees applicable to the remainder of the then-current Subscription Term.
15. Export Restrictions; US Government Licenses
Customer hereby represents and warrants that Customer is not located in, under the control of, and is not a national or resident of, any country to which the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer also represents and warrants that Customer is not an individual to whom the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. Customer shall comply with the export laws and regulations of Canada and the United States that are applicable to the Software and related information and Customer shall comply with any local laws and/or regulations in Customer’s jurisdiction that may impact Customer’s right to export, import, or use the Software or related information, and Customer represents and warrants that Customer has complied with any such applicable laws and/or regulations. Notwithstanding any agreement with a third-party or any provision of law, regulation or policy, if Customer is an agency of the government of the United States of America, then Customer’s rights in respect of the Software and Documentation shall not exceed the rights provided under this Agreement, unless expressly agreed upon by Company in a written agreement between Customer and Company and signed by a Chief Operating Officer or Chief Executive Officer of Company.
Customer may not assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of Company. Notwithstanding the foregoing, Company may assign this Agreement in its entirety (including the Order Form(s)), without consent of the Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
17.1 Force Majeure. Neither Company nor Customer shall be deemed to be in default of any provision of this Agreement (other than Customer’s obligation to pay amounts due to Company hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, civil disturbance, strikes, fires or other catastrophes.
17.2 Logos. Customer hereby grants Company the non-exclusive right and licence to use Customer’s name, logo, trademark, tradenames and testimonies (the “Client Brand”) for sales and marketing purposes to reference Customer as one of Company’s customer, including on our website. For the avoidance of doubt, Company will not use the Client Brand for any other purposes without Customer’s prior consent.
17.3 Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
17.4 Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.
17.5 Independent Contractors. The relationship of Company and Customer established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day to-day activities of the other, (ii) constitute the parties as legal partners, joint venturers, co-owners or otherwise as participants in a joint undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of the parties are their sole respective responsibilities.
17.6 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of law principles. The courts located in Ottawa, Province of Ontario (Canada) shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each party hereby consents to the exclusive jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to this Agreement.
17.7 Entire Agreement. This Agreement is the entire agreement between Customer and Company in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written license agreement with Company or a distributor of Company.
17.8 Order of Precedence. To the extent there is any conflict or inconsistency between these Terms of Service and the terms and conditions in the applicable Order Form, the terms and conditions in the applicable Order Form or any change thereto agreed upon in writing by the Customer and Company will prevail to the extent of such conflict or inconsistency.
17.9 Purchase Orders etc. The terms and conditions of this Agreement and any Order Form(s) (including any change thereto agreed upon in writing by the Customer and Company) shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the Service and Documentation and the right to access and use the Service and Documentation shall be deemed to be pursuant to the terms and conditions of this Agreement, unless Customer has executed a written license agreement with Company, in which case the Service and Documentation shall be deemed to have been licensed pursuant to the terms and conditions of such written license agreement.
17.10 Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
17.11 Amendments. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW OR AS OTHERWISE AGREED IN THE ORDER FORM, COMPANY MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY COMPANY ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
17.12 Language of Agreement. The agreement formed by these Terms of Service has been drawn up in English at the express wish of Company and Customer. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the parties. Il est de la volonté expresse de la Compagnie (Company) et du Client (Customer) que le contrat formé par ces termes et conditions de service soit rédigé en anglais. Toute traduction de celui-ci est non-officiel, est fourni à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.