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ActiveDEMAND SOFTWARE AS A SERVICE AGREEMENT
READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE COMPLETING REGISTRATION. BY SELECTING “I ACCEPT” OR OTHERWISE COMPLETING THE REGISTRATION AND ORDERING THE SOFTWARE SERVICES, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT. YOU REPRESENT THAT YOU HAVE THE AUTHORITY AND POWER TO BIND A COMPANY OR LEGAL ENTITY IN THE CASE YOU ENTER THIS AGREEMENT ON BEHALF OF A COMPANY OR LEGAL ENTITY. IF YOU DO NOT AGREE TO EACH TERM AND CONDITION OF THIS AGREEMENT DO NOT COMPLETE THE REGISTRATION, AND SELECT “I DECLINE”. YOU MAY NOT USE THESE SERVICES WITHOUT ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT AND COMPLETING REGISTRATION.
Upon selecting “I Accept” you (the “Subscriber”) and JumpDEMAND Inc. (the “Service Provider”) are bound by this Agreement effective immediately (the “Effective Date”). Service Provider agrees, on a subscription basis specific to the Subscriber, to allow Subscriber access to certain web-hosted inbound marketing applications, tools, platforms, on an online and offline basis as required, developed by Service Provider, and provide access to additional ancillary online and offline products, software, and web hosting as part of Subscriber’s subscription (collectively, the “Services”).
For greater clarity, the subscription for the Services does not include customization, integration, training services, consulting services, or professional services, online web-based applications and offline software products that are provided by third parties, interoperate with, or are used in connection with the Services, and are identified as being provided by third parties, including but not limited Service Provider’s applications (“Third Party Products”).
Article 1 – The Services.
Service Provider grants Subscriber a renewable, irrevocable (except as expressly provided for herein), non-exclusive, royalty-free, and worldwide right for any Subscriber employee, contractor, or agent, or any other individual or entity authorized by Subscriber, (each, an “Authorized User”) to access and use the Services. Other than those limitations expressly provided to Service Provider in writing by Subscriber, Authorized Users will have no other limitations on their access or use of the Services.
The Services are provided on a tiered basis such tiers are available at https://www.activedemand.com/pricing/ (the “Pricing Link”), or as otherwise provided by Service Provider in a customized quote of fees for the Services exclusively to Subscriber (the “Quote”) the fees cited at the Pricing Link or in the Quote are the “Subscription Fee”). The Subscription Fee shall be set on the Effective Date in accordance with the Subscription Fees posted on the Pricing Link on the Effective Date or or in the Quote. Subscriber agrees to subscribe for the initial number of Authorized Users described in the Pricing Link on the Effective Date or or the Quote (the “Minimum Commitment”).
Subscriber is entitled to increase or decrease the number of Authorized Users on an as-requested basis; provided, however, that Subscriber shall maintain the Minimum Commitment unless Subscriber and Service Provider otherwise agree in writing to adjust the Minimum Commitment. Should Subscriber elect to change the number of Authorized Users, Service Provider shall reduce or increase Authorized Users to the corresponding tier described in the Pricing Link in effect on the date requested or the Quote, and adjust the Subscription Fee (as defined in the Pricing Link in effect on the date requested, or the Quote, within five (5) business days from Subscriber’s written request.
Article 2 – Control and Location of Services.
Article 3 – Storage.
Article 4 – Data Security.
Article 5 – Changes in Functionality.
Subscriber may subscribe to optional features of the Services that Service Provider may offer at an additional fee from time to time, as agreed to between the parties, and such added elements of the Service shall, starting with the date on which the parties agree to the addition, be added to the Subscriber’s Subscription Fee payable under this Agreement.
Article 6 – Technical Support.
For greater clarity, the Technical Support for the Services does not include advice or help with customization, integration, training services, consulting services, or professional services, online web-based applications and offline software products that are provided by Service Provider or related to Third Party Products, that interoperate with, or are used in connection with the Services. The Subscription Fee shall be inclusive of the fees for Technical Support.
Article 7 – Integration.
Article 8 – Consulting Services.
Article 9 – Audit Rights of Service Provider.
Article 10 – Subscription Term.
Following the Initial Term and unless otherwise terminated pursuant to this Agreement, the Subscription shall automatically renew for successive one (1) year terms (each, a “Renewal Term”) until such time as a party provides the other party with written notice of termination; provided, however, that: (a) such notice be given no fewer than thirty (30) calendar days prior to the last day of the then-current term; and, (b) any such termination shall be effective as of the date that would have been the first day of the next Renewal Term (the “Termination Notice”).
Article 11 – Tracking and Reporting.
Service Provider shall comply with all laws and regulations related to the Tracking Services and personal privacy in the jurisdictions in which Service Provider is incorporated. Service Provider shall have no obligation or liability whatsoever to ensure the Tracking Services comply with any relevant laws, regulations, or codes of conduct of the jurisdictions in which Subscriber utilizes the Tracking Services or any other Services provided by Service Provider.
Article 12 – Proprietary Rights.
- Pre-existing Materials. Subscriber acknowledges that, in the course of accessing the Services, Subscriber may use software and related processes, instructions, methods, and techniques that have been previously developed by Service Provider and that the same shall remain the sole and exclusive property of Service Provider; for greater certainty, this also includes any images, templates, layouts, typefaces, or any other pre-designed elements and formats made available to Subscriber by Service Provider through the Services or Consulting Services (collectively, the “Pre-existing Materials,” which shall include the Services).
- No License. Except as expressly set forth herein, no license is granted by either party to the other with respect to the Confidential Information or Pre-existing Materials. Nothing in this Agreement shall be construed to grant to either party any ownership or other interest, in the Confidential Information or Pre-existing Materials, except as may be provided under a license specifically applicable to such Confidential Information or Pre-existing Materials.
The provisions of this Section shall survive the termination of this Agreement.
Article 13 – Termination.
- Termination for Convenience. Without limiting the right of a party to terminate this Agreement as provided for in this Agreement, Subscriber may terminate this Agreement, after satisfying the Minimum Term requirement or paying the outstanding balance equivalent to the Minimum Term in full, and upon 30 days written notice to the other party. The termination shall be effective on the first day of the subsequent month after the month in which notice to terminate is given and all Services shall be terminated by the Service Provider. Subscriber agrees to pay in full any fees our amounts owed to Service Provider for the month in which the termination notice is given.
- Termination by Mutual Agreement. Without limiting the right of a party to terminate this Agreement as provide for in this Agreement, Subscriber and Service Provider may terminate this Agreement at any time upon mutual agreement, in writing, to end the Subscription for the Services. Subscriber agrees to pay in full any fees our amounts owed to Service Provider, for the entire month in which the termination is made effective.
- Termination for Cause. Without limiting the right of a party to immediately terminate this Agreement for cause as provided for in this Agreement, if either party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non-breaching party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach, the non-breaching party may terminate this Agreement for cause as of a date specified in such notice.
- Termination for Non-Payment, Service Provider may suspend Subscriber’s access to all or any part of the Service for cause upon 10 days’ notice to Subscriber of non-payment of any amount due hereunder if such amount remains unpaid at the expiration of such period. Service Provider will not suspend the Service while Subscriber is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
- Payments upon Termination. Upon the termination of this Agreement, Subscriber shall pay to Service Provider all undisputed amounts due and payable hereunder, if any. With the exception of Termination for Non-Payment, Service Provider shall reimburse to Subscriber all amounts due and payable hereunder, such as prepaid fees, if any.
Article 14 – Suspension for Mischief.
Article 15 – Return of Subscriber Data.
Article 16 – Fees and Payments.
- Payment for Subscription Term. In consideration for the Services to be provided by Service Provider, Subscriber agrees to pay the monthly Subscription Fees set forth in the Pricing Link as current at Effective Date or the Quote. Paid Subscription Fees are non-refundable. In consideration for Consulting Services to be provided by Service Provider, if any, Subscriber agrees to pay the fees as set forth in the Statement of Work or as otherwise provided to Subscriber by Service Provider, (the “Consulting Fees”, together with the Subscription Fees, the “Fees”).
- Price Increases. General price increases established by Service Provider will not affect Subscriber during the Initial Term. Service Provider will charge or invoice Subscriber under the new price structure, starting with the next billing period in the Renewal Term. Service Provider will provide the Client 30 day written notice in the event of any general price increases.
- Payment by credit card. Subscriber will provide Service Provider with valid and updated credit card information or bank account information. Subscriber authorizes Service Provider to charge Subscriber’s credit card or bank account for all fees payable on a monthly basis for the Initial Term and all subsequent Renewal Terms.
- Payment against invoice. Service Provider will invoice Subscriber at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period. All amounts invoiced hereunder are due and payable upon receipt of the date of the invoice. Payment instructions shall be as set out on Service Provider’s invoice. Fees paid in advance are not refundable, except as specifically provided for in this Agreement.
- Payment Information. Subscriber shall ensure that all details provided regarding the Subscriber’s contact information, billing information and credit card information, where applicable, are correct and undertakes to update such information when changes to such information occurs. All payment obligations are non-cancellable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are payable in advance throughout the Subscription Term.
- Late Payments. Payments not received by the invoice due date will be assessed a late charge at the rate of 2% monthly, compounded daily, on any unpaid balance.
- Taxes. Service Provider represents and warrants that it is an independent contractor for purposes of federal, provincial, and local taxes. Service Provider agrees that Subscriber is not responsible to collect or withhold any such taxes, including income tax withholding and Canadian Pension contributions, for Service Provider. Any and all taxes, interest, or penalties, including any federal, provincial, or local withholding or employment taxes, imposed, assessed, or levied as a result of this Agreement shall be paid or withheld by Service Provider.
- Credits. Any amounts due to Subscriber from Service Provider may be applied by Subscriber, at the sole election of Subscriber, against any current or future fees due to Service Provider. Any such amounts that are not so applied by Subscriber shall be paid to Subscriber by Service Provider within thirty (30) calendar days following Subscriber’s request. This Section shall survive the termination of this Agreement.
Article 17 – Mutual Representations and Warranties.
- it is a corporation duly incorporated, validly existing, and in good standing under the laws of its province of incorporation;
- it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;
- the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles;
- it shall comply with all applicable federal, provincial, local, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement; and,
- there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under this Agreement.
Article 18 – Representations and Warranties by Subscriber.
- copy, modify, create a derivative work from, reverse engineer or reverse assemble the Pre-Existing Materials, or otherwise attempt to discover any source code, or allow any third party to do so;
- sell, assign, sublicense, distribute, commercially exploit, grant a security interest in or otherwise transfer any right in, or make available to a third party, the Service Provider’s Pre-Existing Materials in any way;
- use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Pre-Existing Materials in a manner that sends more request messages to the Service Provider servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser;
- use the Pre-Existing Materials in any manner that damages, disables, overburdens, or impairs any Service Provider website or interferes with any other party’s use and enjoyment of the Services;
- attempt to gain unauthorized access to the Pre-Existing Materials;
- access the Pre-Existing Materials by any means other than through the interface that is provided by Service Provider for use in accessing the Pre-Existing Materials; and
- use, or allow its Authorized Users to use the Pre-Existing Materials for any purpose or in any manner that is unlawful or prohibited by this Agreement;
Any unauthorized use of any Pre-Existing Materials may violate patent, copyright, trademark, and other laws. Subscriber agrees to cooperate with Service Provider to prevent any unauthorized use of the Pre-Existing Materials
Article 19 – Representations and Warranties By Service Provider.
- it is in the business of providing the Services;
- the Services are fit for the ordinary purposes for which they will be used;
- it is the lawful licensee or owner of the Services (excluding any Subscriber Data therein) and has all the necessary rights in the Services to grant the use of the Services to Subscriber;
- the Services and any other work performed by Service Provider hereunder shall not infringe upon any Canadian copyright, patent, trade secret, or other proprietary right, or misappropriate any trade secret, of any third-party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Agreement;
- it shall disclose any third-party (which shall, for purposes of this Agreement, be deemed a subcontractor) whose intellectual property is incorporated into the Services or who is necessary for the performance of the Services and it shall maintain in-force written agreements with such third-party, if any, for the term of the third-party relationship;
- it has the expertise to perform the Services in a competent, workmanlike, and professional manner and in accordance with the highest professional standards;
- it will use its best efforts to ensure that no computer viruses, malware, or similar items (collectively, a “Virus”) are introduced into Subscriber’s computing and network environment by the Services, and that, where it transfers a Virus to Subscriber through the Services, it shall reimburse Subscriber the actual cost incurred by Subscriber to remove or recover from the Virus, including the costs of persons employed by Subscriber;
- the Services are free of any mechanism which may disable the Services;
- in the case of Subscriber’s reasonable dispute of any Service Provider invoice, it shall not withhold the performance of Services, including, without limitation, access and use of the Services, Technical Support, Maintenance, and extract of Subscriber Data (as defined herein);
- the Services will conform in all material respects to the specifications, functions, descriptions, standards, and criteria set forth as expected based on acceptable industry standards;
- for any breach of the above warranties by Service Provider, Service Provider will remit a Subscription Fee credit to Subscriber in the minimum amount equivalent to the pro-rated cost of the Services to the Subscriber for the number of days which the Subscriber lost material functionality, or in an amount greater than the pro-rated amount that the Service Provider may offer in its sole discretion. The credit will be provided only towards any outstanding balance for services owed to Service Provider. Such credit shall represent Subscriber’s exclusive remedy, and Service Provider’s only liability, for the breach of the warranty under this Agreement; and
- Service Provider will not unreasonably restrict or suspend Subscriber’s access to Services.
SERVICE PROVIDER DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT SERVICE PROVIDER WILL CORRECT ALL SERVICE ERRORS. SUBSCRIBER ACKNOWLEDGE THAT SERVICE PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SERVICE PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
TO THE GREATEST EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS, OR ENVIRONMENTS FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
Article 20 – Subscriber Data.
- Ownership. Subscriber’s data (“Subscriber Data”) which shall also be known and treated by Service Provider as Confidential Information shall include: (a) Subscriber’s data collected, used, processed, stored, or generated as the result of the use of the Services; and, (b) personally identifiable information (“PII”) collected, used, processed, stored, or generated as the result of the use of the Services, including, without limitation, any information that identifies an individual, such as an individual’s social identification number or other government-issued identification number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit card information, or an individual’s name in combination with any other of the elements listed herein. Subscriber Data is and shall remain the sole and exclusive property of Subscriber and all right, title, and interest in the same is reserved by Subscriber. This Section shall survive the termination of this Agreement.
- Service Provider Use of Subscriber Data. Service Provider is provided a limited license to Subscriber Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate, and display Subscriber Data only to the extent necessary in the providing of the Services. Service Provider shall: (a) keep and maintain Subscriber Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose Subscriber Data solely and exclusively for the purpose of providing the Services, such use and disclosure being in accordance with this Agreement and applicable law; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Subscriber Data for Service Provider’s own purposes or for the benefit of anyone other than Subscriber without Subscriber’s prior written consent. This Section shall survive the termination of this Agreement.
- Extraction of Subscriber Data. Service Provider shall, within thirty (30) business days of Subscriber’s request, provide Subscriber, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees due to Service Provider), an extract of the Subscriber Data in an acceptable industry standard format.
- Loss of Data. In the event of any act, error or omission, negligence, misconduct, or breach that compromises or is suspected to compromise the security, confidentiality, or integrity of Subscriber Data or the physical, technical, administrative, or organizational safeguards put in place by Service Provider that relate to the protection of the security, confidentiality, or integrity of Subscriber Data, Service Provider shall, as applicable: (i) notify Subscriber as soon as commercially reasonable; (ii) use reasonable industry standards to investigate the occurrence, including making available all relevant records, logs, files, data reporting, and other materials as required to comply with applicable law or regulations to Subscriber; (iii) in the case of PII, notify the affected individuals who comprise the PII as soon as practicable but no later than is required to comply with applicable law; (iv) perform or take any other actions required to comply with applicable law as a result of the occurrence; (v) without limiting Subscriber’s obligations of indemnification as further described in this Agreement, indemnify, defend, and hold harmless Subscriber for any and all claims, including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from Subscriber in connection with the occurrence; and (vi) if commercially practical, be responsible for recreating lost Subscriber Data within a commercially reasonable time period and without charge to Subscriber.
In respect to PII, notification to affected individuals, as described above, shall comply with applicable law, be written in plain language, and contain, at a minimum: name and contact information of Service Provider’s representative; a description of the nature of the loss; a list of the types of data involved; the known or approximate date of the loss; how such loss may affect the affected individual; what steps Service Provider has taken to protect the affected individual; and what steps the affected individual can take to protect himself or herself. This Section shall survive the termination of this Agreement.
Article 21 – Non-Disclosure of Confidential Information.
- Meaning of Confidential Information. For the purposes of this Agreement, “Confidential Information” shall mean all information and documentation of a party that: (i) has been marked “confidential” or with words of similar meaning at the time of disclosure by such party; (ii) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; and (iii) should reasonably be recognized as confidential information of the disclosing party. Confidential Information does not include any information or documentation that was: (iv) already in the possession of the receiving party without an obligation of confidentiality; (v) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (vi) obtained from a source other than the disclosing party without an obligation of confidentiality; or (vi) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party). For purposes of this Agreement, in all cases and for all matters, Subscriber Data shall be deemed to be Confidential Information.
- Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.
- Co-operation to Prevent Disclosure of Confidential Information. Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
(d) Remedies for Breach of Obligation of Confidentiality. Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, in the case of Subscriber, at the sole election of Subscriber, the immediate termination, without liability to Subscriber, of this Agreement.
- Surrender of Confidential Information upon Termination. Upon termination of this Agreement, in whole or in part, each party shall, within thirty (30) calendar days from the date of termination, return to the other party any and all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession, custody, or control; provided, however, that Service Provider shall return Subscriber Data to Subscriber following the timeframe and procedure described further in this Agreement. Should Service Provider or Subscriber determine that the return of any non-Subscriber Data Confidential Information is not feasible, such party shall destroy the non-Subscriber Data Confidential Information and shall certify the same in writing within thirty (30 calendar days from the date of termination to the other party.
- Undertaking by Service Provider. Without limiting Service Provider’s obligation of confidentiality as further described herein, Service Provider shall be responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (i) ensure the security and confidentiality of the Subscriber Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the Subscriber Data; (iii) protect against unauthorized disclosure, access to, or use of the Subscriber Data; (iv) ensure the proper disposal of Subscriber Data; and
- ensure that all employees, agents, and subcontractors of Service Provider, if any, comply with all of the foregoing. In no case shall the safeguards of Service Provider’s data privacy and information security program be less stringent than the safeguards used by Subscriber.
Article 22 – Indemnification and Limitation of Liability.
- General Indemnification. Service Provider agrees to indemnify, defend, and hold harmless Subscriber and its officers, directors, agents, and employees (each, an “Indemnitee”) from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (each, a “Claim” and collectively, the “Claims”), including reasonable legal counsel fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to any act, error or omission, negligence, or misconduct of Service Provider, its officers, directors, agents, employees, and subcontractors, during the performance of this Agreement, including, without limitation, Claims arising out of or relating to: (i) bodily injury (including death) or damage to tangible personal or real property; (ii) any payment required to be paid to subcontractors, if any, of Service Provider; (iii) any material misrepresentation or breach of warranty of any representation or warranty set forth in this Agreement; or, (iv) any material breach of any covenant set forth in this Agreement; provided, however, that the foregoing indemnity shall not apply to the extent that the applicable Claim resulted from the acts or omissions of an Indemnitee.
- Proprietary Rights and Indemnification. Service Provider agrees to indemnify, defend, and hold harmless Indemnitees from and against any and all Claims, including reasonable legal counsel fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to the Services infringing or misappropriating any Canadian or foreign patent, copyright, trade secret, trademark, or other proprietary right. In the event that Service Provider is enjoined from providing the Services and such injunction is not dissolved within thirty (30) calendar days, or in the event that Subscriber is adjudged, in any final order of a court of competent jurisdiction from which no appeal is taken, to have infringed upon or misappropriated any patent, copyright, trade secret, trademark, or other proprietary right in the access or use of the Services, then Service Provider shall, at its expense: (i) obtain for Subscriber the right to continue using such Services; (ii) replace or modify such Services so that they do not infringe upon or misappropriate such proprietary right and is free to be used by Subscriber; or, (iii) in the event that Service Provider is unable or determines, in its reasonable judgment, that it is commercially unreasonable to do either of the aforementioned, Service Provider shall reimburse to Subscriber any prepaid fees and the full cost associated with any Transition Services.
- Indemnification Procedures. Promptly after receipt by Subscriber of a threat, notice, or filing of any Claim against an Indemnitee, Subscriber shall give notice thereof to Service Provider, provided that failure to give or delay in giving such notice shall not relieve Service Provider of any liability it may have to the Indemnitee except to the extent that Service Provider demonstrates that the defense of the Claim is prejudiced thereby. Service Provider shall have sole control of the defense and of all negotiations for settlement of a Claim and Subscriber shall not independently defend or respond to a Claim; provided, however, that: (i) Subscriber may defend or respond to a Claim, at Service Provider’s expense, if Subscriber’s counsel determines, in its sole discretion, that such defense or response is necessary to preclude a default judgment from being entered against an Indemnitee; and, (ii) Subscriber shall have the right, at its own expense, to monitor Service Provider’s defense of a Claim. At Service Provider’s request, Subscriber shall reasonably cooperate with Service Provider in defending against or settling a Claim; provided, however, that Service Provider shall reimburse Subscriber for all reasonable out-of-pocket costs incurred by Subscriber (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.
- Third-Party Beneficiaries. For the purposes of this Section and Service Provider’s obligations hereunder, non-party Indemnitees are third-party beneficiaries (“Third Party Beneficiaries”) of this Agreement in accordance with its terms. Any action or consent taken by Subscriber on its own behalf is binding upon the Third Party Beneficiaries for the purposes of this Section. Other than as provided for in this Section, this Agreement is for the sole benefit of the signatories hereto and their permitted successors and assigns. Nothing, express or implied, in this Agreement is intended to create or be construed to create any rights of enforcement in any persons or entities who are neither signatories to this Agreement nor Third Party Beneficiaries.
NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) A PARTY’S OBLIGATIONS OF INDEMNIFICATION, AS FURTHER DESCRIBED IN THIS AGREEMENT; (B) DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR, (C) A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT.
This Section shall survive the termination of this Agreement.
Article 23 – General.
- Relationship between Subscriber and Service Provider. Service Provider represents and warrants that it is an independent contractor with no authority to contract for Subscriber or in any way to bind or to commit Subscriber to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of Subscriber. Under no circumstances shall Service Provider, or any of its staff, if any, hold itself out as or be considered an agent, employee, joint venture, or partner of Subscriber. In recognition of Service Provider’s status as an independent contractor, Subscriber shall carry no workers’ compensation insurance or any health or accident insurance to cover Service Provider or Service Provider’s agents or staff, if any. Subscriber shall not pay any contributions to Canadian Pension Plan, employment insurance, federal or provincial withholding taxes, any other applicable taxes whether federal, provincial, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship. Neither Service Provider nor its staff, if any, shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of Subscriber.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada, without regard to choice of laws. Subscriber and Service Provider each hereby consent and submit to the jurisdiction and forum of the province and federal courts in the Province of Alberta in all questions and controversies arising out of this Agreement.
- Legal Fees and Costs. In any arbitration, litigation, or other proceeding, informal or formal, by which one party either seeks to enforce this Agreement or seeks a declaration of any rights or obligations under this Agreement, the non-prevailing party shall pay the prevailing party’s costs and expenses, including but not limited to, reasonable legal fees.
- Compliance with Laws; Subscriber Policies and Procedures. Both parties agree to comply with all applicable federal, provincial, and local laws, executive orders and regulations issued, where applicable.
- Co-operation. Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder. Service Provider will cooperate with any Subscriber supplier performing services, and all parties supplying hardware, software, communication services, and other services and products to Subscriber, including, without limitation, the Successor Service Provider. Service Provider agrees to cooperate with such suppliers, and shall not commit or permit any act which may interfere with the performance of services by any such supplier.
- Force Majeure. Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party.
- Advertising and Publicity. Service Provider shall not refer to Subscriber directly or indirectly in any advertisement, news release, or publication without prior written approval from Subscriber.
- No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
- Notices. Any notice given pursuant to this Agreement shall be in writing and shall be given by personal service or by United States certified mail, return receipt requested, postage prepaid to the addresses appearing at the end of this Agreement, or as changed through written notice to the other party. Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, and notice mailed shall be deemed effective on the third day following its placement in the mail addressed to the addressee.
- Assignment of Agreement. This Agreement and the obligations of Service Provider hereunder are personal to Service Provider and its employees. Neither Service Provider nor any successor, receiver, or assignee of Service Provider shall directly or indirectly assign this Agreement or the rights or duties created by this Agreement, whether such assignment is effected in connection with a sale of Service Provider’s assets or stock or through merger, an insolvency proceeding or otherwise, without the prior written consent of Subscriber. In the case of an assignment by Service Provider, Service Provider represents and warrants that it has all requisite rights and power to transfer any agreements or other rights with third-parties whose software is incorporated into the Services or who are necessary for the performance and use of the Services. Subscriber, at Subscriber’s sole election, may assign any and all of its rights and obligations under this Agreement to any company that succeeds to substantially all of Subscriber’s business.
- Counterpart Execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile signature may substitute for and have the same legal effect as the original signature.
(l) Entire Agreement. This Agreement and the Quote or the Pricing Link, as current at the Effective Date or start of a Renewal Term, as applicable, constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Subscriber and Service Provider as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties. This Agreement shall be construed without regard to the party that drafted it. Any ambiguity shall not be interpreted against either party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.
- Cumulative Remedies. All rights and remedies of Subscriber herein shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against Service Provider for the enforcement of this Agreement, and temporary and permanent injunctive relief.
The parties have caused this Agreement to be executed by their duty authorized representatives as of the Effective Date by completing this registration and clicking “I Accept”.