CLICK MAINT INC. TERMS OF SERVICE
TERMS OF SERVICE
Last Updated: November 29, 2023.
These Terms of Service (“Terms”), are by and between the Provider (the “Provider”) named on any Order (as defined below) and the customer (the “Customer”) named on any Order and sets out the terms and conditions under which Provider will provide, and Customer will receive access to the Services (as defined below). Acceptance of these Terms is evidenced by the signing or entering into of an Order (as defined below) by the Customer or by the Customer’s use of the Services.
The parties to these Terms are referred to herein individually as “Party” and collectively as the “Parties”.
The Provider may change these Terms of Service from time to time, which changes shall be effective upon the commencement of the next Renewal Term (as defined below).
1. DEFINITIONS
1.1 “Affiliate” means any entity which directly or indirectly Controls, is Controlled by, or is under common Control by either Party. “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Authorized User” means the Customer’s employees, independent contractors and agents who are authorized by Customer to access and use the Subscription Services on the Customer’s behalf.
1.3 “Business Days” means Monday to Friday, excluding any day other than Saturday, Sunday or any other day on which either Party’s offices in the province of Manitoba are closed to the public.
1.4 “Content” means floor plans, drawings, maps, images, documents, graphics, communications, information, or other materials imported by Customer into the Subscription Services.
1.5 “Documentation” means written or electronic explanatory materials, such as user manuals, training manuals, specifications regarding use of the Services that are published by the Provider and which may be revised by the Provider from time to time.
1.6 “Fees” means the fees payable by the Customer as specified in each Order.
1.7 “Initial Term” means the initial period for Services, as specified in the Order.
1.8 “Law(s)” means any statute, ordinance, judicial decision, executive order, directive or regulation having the force and effect of law in each case to the extent applicable to a Party, the Services and the use thereof, in connection with these Terms.
1.9 “Order” means an ordering document that specifies the Services purchased by the Customer or its Affiliates under these Terms, which may include as applicable, the quantities, subscription start and end dates, Support Services, Professional Services, and other related details. If multiple Orders are executed, each Order will form a separate contract between the Parties.
1.10 “Overage Fees” means additional units or quantities, related to the Subscription Services, which are in excess of the initial contracted amounts in the Order.
1.11 “Professional Services” means any services other than the Subscription Services or Support Services to be provided by the Provider as more particularly described in an Order.
1.12 “Sensitive Data” means an (i) individual’s government-issued identification number (including Social Insurance Number - SIN (or equivalent), driver’s license number, or government-issued identification number); (ii) sexual preference or activities, marital status, nationality, racial or ethnic origin; (iii) financial account number, credit card number, debit card number, credit report information, with or without any required security code, access code, personal identification number or password that would permit access to an individual’s financial account; (iv) religious or philosophical beliefs or affiliations, political party membership, or labor or trade union membership; or (v) biometric, genetic, health, medical, or medical insurance data.
1.13 “Standard Personal Data” means any information relating to an identified or identifiable individual, including but not limited to: name, business email, employer ID, job title, phone numbers, mail stop, room location, desk location submitted by Customer to the Subscription Services, as well as other standard personal information specific to the work environment and office and facilities management.
1.14 “Services” means, collectively, the Subscription Services, Support Services and Professional Services provided by Provider to Customer under the applicable Order.
1.15 “Subscription Services” means Provider’s software-as-a-service subscription cloud-based service as more specifically identified in an Order.
1.17 “Subscription Term” means the period during which the Subscription Services will be provided as set out in each Order, including the Initial Term and any Renewal Terms.
1.18 “Support Services” means the support services described in an Order.
1.19 “U.K.” means the United Kingdom.
1.20 “U.S.” means the United States of America.
Other capitalized terms used in these Terms will have the meanings given to those terms, where they are defined in these Terms.
2. THE SUBSCRIPTION SERVICES
2.1 Access Rights. Subject to these Terms, the Provider grants to the Customer during the Subscription Term a worldwide, non-exclusive, non-transferable (except as expressly permitted in Section 12.5) right to access and use the Subscription Services solely for the Customer’s internal business purposes and only in accordance with the applicable Documentation and the Order. The Customer agrees that the Customer’s subscription to the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by the Provider regarding future functionality or features.
2.2 Use Restrictions. The Customer will not and will not permit any of its Authorized Users to: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Authorized Users as permitted herein; (c) reverse engineer or decompile any portion of the Services including, without limitation, accessing the source code thereof; (d) access the Services or use any Documentation in order to build a similar product or competitive product; (e) copy any features, functions, integrations, interfaces or graphics of the Services; (f) submit any infringing or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (g) intentionally interfere with or disrupt the integrity or performance of the Services; (h) circumvent or disable any security or features of the Subscription Services, or attempt to probe, scan, gain access to, or test the vulnerability of the Provider’s network and/or Subscription Services or any systems, networks, servers, computers, devices, or equipment owned, controlled, or used by the Provider to provide the Services; (i) frame or mirror any portion of the Services; (j) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services; (k) engage in any conduct that is likely to result in Services being the target of a denial of service (DoS) attack, or interfere with or disrupt the integrity or performance of the Services or any related data; (l) remove any copyright notices, trademarks and any other proprietary marks of Provider, its Affiliates and its suppliers from any Documentation or Services; or (m) upload, transmit or store any Sensitive Data through the Subscription Services.
2.3 Acceptable Use Policy. During the Subscription Term, the Customer: (a) shall be solely responsible for the integrity, accuracy, legality, and quality of the Standard Personal Data or Content; (b) shall be responsible for procuring any necessary consents or having other legal basis to upload and store Standard Personal Data in the Subscription Services; (c) shall be responsible for ensuring that its internet connections and hardware are compatible with the Subscription Services as set out in the relevant Documentation; (d) shall not upload any data in the Subscription Services that it knows or has reason to know: (i) infringes another’s intellectual property rights, or (ii) invades any privacy laws including without limitation another’s right to privacy and/or any privacy policies of the Customer or any third-party; (e) shall not: (i) engage or facilitate any unethical, deceptive or misleading practices in connection with the use of the Subscription Services, (ii) use the Subscription Service to send unsolicited messages (commercial or otherwise), and/or (iii) provide data to be transmitted in the Subscription Services which is defamatory, libelous, obscene, pornographic, threatening, defamatory, or is otherwise harmful; and/or promotes violence, discrimination, illegal activities, gambling, alcoholic beverages, guns or tobacco; (f) acknowledges that it is responsible for implementing and maintaining reasonable security precautions in connection with its use of the Subscription Services; and (g) agrees to (i) identify and authenticate all Authorized Users, (ii) approve access by such Authorized Users to the Subscription Services; and (iii) promptly deactivate access to terminated personnel or known unauthorized personnel.
2.4 Authorized Users. The Provider is not responsible for any harm arising from any acts or omissions of any Authorized Users, including individuals who were not authorized to access the Subscription Services but who were able to gain access for any reason. The Customer will notify the Provider immediately of any actual or suspected unauthorized access to the Subscription Services at privacy@clickmaint.com.
2.5 Professional Services. In the event that the Customer elects to have the Provider perform any Professional Services, the Parties may complete either a written Order for minor projects or enter into a written statement of work for major projects, each governing the provision of such Professional Services. The Provider shall perform such Professional Services (i) in a professional and workmanlike manner and (ii) in accordance with the terms and conditions set out in the statement of work. If the Customer does not reasonably believe that the Provider has performed its obligations as required under this Section 2.5, then the Customer must notify the Provider of this within thirty (30) days of completion of the affected Professional Services. The Customer’s exclusive remedy arising out of a failure to provide the Professional Services in accordance with this Section 2.5 is limited to the re-performance of the Professional Service, or if re-performance is not commercially reasonable (in the sole opinion of the Provider), termination as provided by Section 11.2 (Termination for Material Breach). The Customer will provide (as relevant) assistance, cooperation, key role positions, and resources reasonably necessary to enable the Provider to perform the Professional Services. The Customer acknowledges that the Provider’s ability to provide Professional Services as described in the statement of work may be affected if the Customer does not meet its responsibilities as set out in the applicable statement of work. Any revisions, additions or deletions to the Order or statement of work will be addressed by the Provider issuing a new Order, and in no case shall the Provider be obligated to perform any work or services which are not set out in a written Order which has been accepted by both Parties.
2.6 Customer Systems. The Customer shall at all times during the Subscription Term: (a) set up, maintain and operate in good repair, all information technology infrastructure on or through which the Services are accessed or used, which is not the Provider’s obligation under these Terms or the applicable Order, statement of work or order form (the “Customer Systems”); (b) provide the Provider access to the Customer’s premises and Customer Systems as is necessary for the Provider to perform the Services; and (c) provide promptly all cooperation, assistance and information as the Provider may reasonably request to enable it to exercise its rights and perform its obligations under and in connection with these Terms. The Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by: (d) the Customer’s delay in performing, or its failure to perform, any of its obligations under these Terms, including without limitation any incompleteness or inaccuracies in any information provided by the Customer; or (e) a failure of the Customer Systems to operate in accordance with manufacturer’s specifications or as otherwise indicated in project documentation or instructions reasonably provided by the Provider.
2.7 Affiliates. The Customer and/or Customer’s Affiliates may purchase Services through an Order, provided that the Customer shall be responsible for such Affiliate’s performance of its obligations. In such event, (i) the Customer Affiliate executing the Order will, for the purposes of such Order, be considered “Customer” as that term is used in these Terms, and (ii) all Orders will be governed by these Terms regarding the Customer’s and its Affiliate’s access and use of the Services and the Order will include a statement to this effect which shall be signed by the relevant Affiliate. For clarity, the Provider will not be obligated to provide any Services to the Customer, or its Affiliate(s) until the Provider receives a valid Order for such Services.
2.8 Changes to the Subscription Service. The Provider may modify the Subscription Services from time to time by removing unused features and /or substituting outdated features with new features that have similar or improved functionality, by implementing system upgrades, migrations and/or platform changes or otherwise so long as such changes are not intended to and do not materially adversely affect the Customer’s use of the Subscription Services. The Customer’s continued use of the Subscription Services following such changes constitute the Customer’s acceptance thereof.
3. PROVISION OF SERVICES
3.1 Subscription Services Availability. During the Subscription Term, the Provider will use commercially reasonable efforts to: (i) make the Subscription Services available to the Customer in accordance with the applicable Service Level Agreement (“SLA”) located at https://www.clickmaint.com/service-level-agreement (which is incorporated into and forms part of these Terms); and (ii) utilize a reputable hosting infrastructure to provide the Subscription Services.
3.2 Support Services. During the Subscription Term, the Provider will provide the Support Services to the Customer as set out in the Order, subject to the terms and provisions of the SLA.
3.3 Service Levels. Service levels of the Subscription Services shall be governed by the terms of the SLA.
4. PAYMENT AND TAXES
4.1 Payment Terms. Unless specified otherwise in the Order, all Fees (i) will be stated and paid in the currency specified in the Order without setoff or any deductions, (ii) cannot be decreased during the Subscription Term; and (iii) are non-refundable. The Customer will pay the Fees identified in the Order as follows:
(a) Subscription Service Fees. Unless otherwise provided on the Order, the Provider will invoice the Customer annually in advance for the Subscription Services. Payment is due to the Provider on the earlier of: (i) thirty (30) days from the invoice date or (ii) the anniversary of the Order start date. Subscription Fees are based on Services purchased and not actual usage (except for Overage Fees).
(b) Overage Fees. The Customer will pay to the Provider the Overage Fees calculated and invoiced in accordance with the Order within thirty (30) days from the invoice date.
(c) Professional Services Fees. Professional Services Fees will be delivered on time and material basis or fixed fee basis, in either case, as stated in an Order or statement or work.
(e) Expenses. The Provider will invoice the Customer in arrears for any pre-approved expenses incurred in connection with delivering any of the Services, such as food, travel, and lodging, as set out in the applicable Order or statement of work.
4.2 Payment Details. The Customer is responsible for providing complete and accurate invoicing details and primary contact information to the Provider and notifying the Provider of any changes to such information via email sent to accounting@clickmaint.com. Where a purchase order number is given by the Customer, the Provider shall include such purchase order number on the invoice. If the Customer fails to provide or provides an incorrect purchase order number then it shall not be relieved of its obligation to pay the relevant Fees.
4.3 Overdue Charges. Any undisputed payment that is not received by the due date may accrue late charges at the rate of 1.5% per month or the highest rate permitted by Law, whichever is lower, plus any and all collection costs.
4.4 Invoice Disputes. If Customer reasonably, and in good faith, disputes all or any portion of any invoice, the Customer will notify the Provider in writing emailed to accounting@clickmaint.com of its objection within thirty (30) days from the date of the Customer’s receipt of the relevant invoice, provide a detailed description of the reasons for the objection, and pay the portion of the invoice which is not in dispute (if any). Failure to provide an objection within the time frame will be deemed acceptance of the invoice. The Customer’s obligations to pay the disputed amounts of any such invoice will be suspended until such time as the Parties resolve such dispute.
4.5 Taxes. Except as otherwise stated in an Order, the Fees do not include any direct or indirect local, provincial, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, goods- and-services tax, excise, use or withholding taxes (collectively, “Taxes“). The Customer is responsible for paying all Taxes, excluding any income taxes levied on the Provider. If the Provider has a legal obligation to pay or collect Taxes for which the Customer is responsible, the appropriate amount will be invoiced to and paid by the Customer, unless the Customer provides the Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. If the Customer is required by Law to account for or pay any withholding for any tax, duty, or other charge in respect of any invoice issued by the Provider (“WHT”), the Customer will: (i) gross up the amount payable under the invoice to apply the rate of WHT so that, after payment of any WHT, the net amount received by the Provider from the Customer will be equal to the actual amount payable under the invoice; (ii) pay the WHT to the relevant taxing or other governmental authority; and (iii) promptly provide evidence of such payment. The Customer shall indemnify, and hold the Provider and its Affiliates harmless from and against third party claims, damages, losses, liabilities, costs and expenses arising from non-payment of any WHT.
4.6 Fee Increase. Provider reserves the right to increase fees after the expiration or renewal of the initial Subscription Term (which may be monthly, annually or some other period). The Provider will provide at least sixty (60) days’ advance notice of any such fee increase prior to the renewal date. If an Order sets out additional or conflicting fee increase terms, those additional or conflicting fee increase terms will prevail and govern, to the extent of such inconsistency.
5. PROPRIETARY RIGHTS
5.1 Retained Rights. Subject to the limited rights expressly granted hereunder, the Provider and its licensors reserve all of their right, title and interest in and to: (a) all information, data or other content that is generated by or used in connection with the Subscription Services including, without limitation, all of their related intellectual property rights, aggregated and statistical data arising from the operation of the Services and any customizations, improvements, suggestions, enhancement requests, recommendations or other feedback, relating to the functionality of the Services, regardless of whether such material is provided by the Customer or the Provider and its Authorized Users (collectively the “Provider Content”), but for clarity, the Provider Content does not include the Content or Standard Personal Data, the ownership of which remains with the Customer; and (b) the Services (including without limitation, the Provider Content), and including any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trade-mark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms or protection in any party of the world (collectively, “IP Rights”) in any of them. The Customer acknowledges and agrees that it has no right, license or authorization with respect to any of the Services or Provider Content (including any IP Rights therein) except as expressly set out herein.
5.2 Content and Standard Personal Data. The Customer represents and warrants it has the right and authority to provide the Provider with the Content and any Standard Personal Data for use in connection with the Subscription Services. As between the Parties, the Content and Standard Personal Data will be owned by the Customer. The Customer grants the Provider a non-exclusive, worldwide, transferable, royalty-free and fully paid license to use the Content and Standard Personal Data solely as necessary to perform the Subscription Services. The Provider reserves the right to access and monitor the Services and any Standard Personal Data, Content or information which is resident on, or transits through, the Services, to: (a) provide the Services, including upgrades thereto; (b) satisfy applicable laws, regulations, legal processes or governmental request; (c) enforce these Terms, including investigation of potential violations hereof; (d) detect, prevent, or otherwise address fraud, security or technical issues, or (e) respond to user support requests. The Provider will not be responsible or liable for the exercise or non-exercise of its rights under this Section 5.2.
5.3 Feedback. The Parties acknowledge that the Subscription Services may collect and aggregate certain de-identified information and data regarding the use and operation of the Subscription Services by the Customer. Customer agrees that the Provider may utilize such information and data as well as any Customer suggestions, enhancement requests or other recommendations (collectively, “Feedback“) for any lawful business purpose, without a duty of accounting to the Customer so long as such Feedback does not identify the Customer, or any Customer provided Content or Standard Personal Data. No compensation will be paid with respect to the Provider’s use of Feedback. The Provider will own all rights, title, and interest, including all related intellectual property rights in any Feedback provided by the Customer.
5.4. Notwithstanding any restrictions, conditions, requirements or limitations in these Terms, the Parties acknowledge and agree that the Customer shall not: (a) assign, transfer or redistribute the Subscription Services to any third party in whole or in part other than as permitted under these Terms; (b) grant any sublicense or otherwise permit any person other than an Authorized User to access or use the Subscription Services; (c) charge a fee to any third party for access or use of the Subscription Services; (d) install, use or make available the Subscription Services or any for any online application service provider business, internet service provider business, or other online software rental business; (e) use or permit the use of the Services other than for the purposes set out from time to time in any Order; or (f) not use any Provider Content, except to use and enjoy the benefit of the Subscription Services in accordance with the terms of these Terms.
6. CONFIDENTIALITY AND DATA PRIVACY
6.1 Confidential Information. The term “Confidential Information” means Standard Personal Data, internal policies and procedures of a Party and all other non-public information that a reasonable person should understand to be confidential due to its nature and the circumstances in which it was disclosed and that is disclosed by or on behalf of either Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether such information is disclosed before or after the Effective Date, but specifically excludes account history and user activity of the Customer, provided such information does not contain personally identifiable information. The obligations of confidentiality set out herein do not apply to information that (i) was in the public domain prior to the time of disclosure; (ii) enters the public domain after disclosure through no action or inaction of the Receiving Party; (iii) is already known by the Receiving Party at the time of disclosure; (iv) is obtained by the Receiving Party from a third party without restriction; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. Except as otherwise expressly set out in these Terms, the Receiving Party will not disclose (including, without limitation, distribute, transmit or transfer) or use the Confidential Information of the Disclosing Party or any portion thereof without the prior written consent of Disclosing Party except for the purpose of exercising its rights or performing its obligations under these Terms. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set out in these Terms and Receiving Party will be responsible for any unauthorized disclosure of any Confidential Information by such persons as if Receiving Party had made such unauthorized disclosure itself. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by Law so long as the Receiving Party gives the Disclosing Party (to the extent legally permissible) prompt written notice prior to the disclosure and reasonable assistance in limiting disclosure or obtaining a protective order. Provider may disclose the agreement between the Parties to actual and potential investors and funding sources who agree to hold it in confidence. The Receiving Party agrees to take steps designed to protect the Disclosing Party’s Confidential Information that are substantially similar to those it takes to protect its own proprietary information (but not less than reasonable care) from unauthorized disclosure. Receiving Party will promptly notify the Disclosing Party if the Receiving Party becomes aware of any misuse or unauthorized disclosure of Confidential Information.
6.2 Return of Confidential Information of Disclosing Party. Upon Disclosing Party’s written request or when these Terms are terminated or expire, within thirty (30) days of such request, termination or expiration (as the case may be), the Receiving Party will return or destroy all Confidential Information. However, the Receiving Party is permitted to retain copies of the Confidential Information for archival, audit, disaster recovery, legal and/or regulatory purposes. The return of any Confidential Information as required under this Section 6.2 shall be performed in accordance with the provisions of Section 11.4 hereof.
6.3 Injunctive Relief. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information of the Disclosing Party may result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to: (a) show any actual damage or irreparable harm; (b) prove the inadequacy of its legal remedies; or (c) post any bond or other security.
6.4 Provider Data Security and Privacy Obligations. The Provider maintains industry standard physical, administrative, and technical security measures to protect against and prevent unauthorized access of Standard Personal Data and Content, but cannot and does not guarantee that Standard Personal Data or Content will not be subject to unauthorized access or disclosure. The Provider is not responsible for unauthorized access, alteration, theft or destruction of Standard Personal Data or Content arising from the Customer’s or its Authorized User’s actions or omissions. The Provider’s privacy policy (“Privacy Policy”) is located at https://www.clickmaint.com/privacy-policy.
6.5 Customer Data Security and Privacy Obligations. The Customer shall, at all times during the Term, retain sole responsibility for: (a) all Standard Personal Data or Content, including its content and use; (b) all information, instructions and materials provided by or on behalf of the Customer or any Authorized User in connection with the Subscription Services; (c) all information, technology infrastructure on or through which the Subscription Services are access or used, which is not the Provider’s obligation under these Terms or the applicable Order; (d) the security and use of access credentials of the Customer and its Authorized Users; (e) all access to and use of the Subscription Services and Provider Content directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without the Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use; and (f) any interception of Standard Personal Data or Content, by third parties, and for greater certainty, the Provider cannot guarantee data security, and its obligations are expressly limited to complying with the Privacy and Security Obligations.
7. REPRESENTATIONS AND DISCLAIMER
7.1 Mutual Representations. Each Party represents and warrants that: (a) it has the full corporate right, power, and authority to enter into and perform its obligations and grant the licenses it grants or is required to grant under these Terms; (b) the execution of an Order by its representative whose signature is set out on the Order has been duly authorized by all necessary corporate or organizational action of such Party, and (c) when an Order is executed, the applicable Order will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
7.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, PROVIDER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER INCLUDING THAT THE SERVICES OR THE DOCUMENTATION ARE ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. PROVIDER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. THE SUBSCRIPTION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PROVIDER SHALL NOT HAVE ANY LIABILITY FOR PERSONAL INJURY OR DEATH (EXCEPT WHERE ARISING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD) OR PROPERTY DAMAGE ARISING FROM FAILURE OF THE SUBSCRIPTION SERVICES, HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8. INDEMNIFICATION AND PROCEDURES
8.1 Provider Indemnification. The Provider will defend, indemnify, and hold the Customer and its Affiliates harmless from and against third party claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) (collectively, “Claim(s)”) arising out of or relating to the extent (a) that the Services infringe or misappropriate any intellectual property right of such third party or (b) arising out of the Provider’s gross negligence, willful misconduct or fraud.
8.2 The Provider will have no obligation under Section 8.1(a) for any Claim to the extent arising out of or is based upon: (i) Customer’s use of the Services not in compliance with these Terms, Order, or the Documentation; (ii) the Customer’s combination of the Services with software, system, data, or other materials not supplied or authorized by the Provider (unless expressly permitted by the Documentation) without the Provider’s prior written authorization; or (iii) the Content or Standard Personal Data provided to the Provider.
8.3 In the event an infringement or misappropriation Claim involving the Services is brought or threatened, or is likely to be brought or threatened in the Provider’s reasonable opinion, the Provider may, at its sole option and expense: (i) procure for the Customer the right to continue to use the Services, (ii) modify the Services in a manner that does not materially degrade the Service’s functionality, or (iii) terminate the affected Services and, with respect to termination of the Subscription Services, refund the unearned portion of the Fees payable for the affected Subscription Services based on the days left in the Subscription Term, less any Fees for usage accrued prior to the date of termination. Notwithstanding anything else herein, the foregoing indemnification obligations are the Provider’s only obligations and liability, and the Customer’s exclusive remedy, in respect of any infringement or misappropriation Claim.
8.4 Customer Indemnification. The Customer will defend, indemnify, and hold the Provider, its Affiliates, suppliers, and licensors harmless from and against any Claims arising out of or relating to: (a) Standard Personal Data and Content provided to the Provider; (b) breach of Sections 2.2 or 2.3; (c) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from Standard Personal Data or Content; or (d) the Customer’s gross negligence, willful misconduct, or fraud.
8.5 Indemnification Procedures. The Party seeking indemnification (the “Indemnified Party”) hereunder shall promptly notify the other Party (the “Indemnifying Party”) in writing of any action and cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall immediately take control of the defense and investigation of such action and shall employ counsel of its choice to handle and defend the same. The Indemnifying Party shall not settle any action in a manner that adversely affects the rights of the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnified Party’s failure to perform any obligations under this Section shall not relieve the Indemnifying Party of its obligations under this Section except to the extent that the Indemnifying Party has been prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES BE LIABLE FOR (I) PURE ECONOMIC LOSS OR LOSS OF REVENUE OR PROFITS; LOSS OF USE OR DAMAGE OR UNAUTHORIZED ACCESS TO DATA; COST TO PROCURE SUBSTITUTE SERVICES; LOSS OR DEPLETION OF GOODWILL; OR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (II) DIRECT DAMAGES IN EXCESS OF THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES TO PROVIDER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS AND EXCLUSIONS DO NOT APPLY TO THE CUSTOMER’S FAILURE TO REMIT ALL FEES PROPERLY DUE AND OWING UNDER THE APPLICABLE ORDER.
10. INSURANCE
10.1 Insurance. The Provider will maintain insurance with financially sound and reputable insurance companies in such amounts and covering such risks as is usually carried by companies engaged in its business and as required by any certifying organization, including: (a) errors and omission liability; (b) communications and media liability in each case, in amounts not less than two million dollars ($2,000,000.00) per incident and in the aggregate, as well as (c) network and information security liability. Upon the Customer’s request, the Provider will provide a certificate of insurance.
11. TERM AND TERMINATION; SUSPENSION
11.1 Order Term. Each Order will set out the applicable term during which the Services will be provided to Customer. Unless otherwise provided in an Order, upon expiration of the Initial Term or any Renewal Term, the Subscription Services will automatically renew for additional periods, as set out in the Order (each a “Renewal Term”). Each Party must provide at least thirty (30) days’ written notice if it intends for the Subscription Services to expire at the end of the then-current Subscription Term. The thirty day (30) notice does not apply to Subscription Terms less than one (1) year, as is in the case of Month-to Month Terms.
11.2 Termination. Either Party may terminate any Order immediately upon written notice if the other Party: (a) materially breaches any obligations under these Terms or an Order and fails to cure the breach within thirty (30) days after receiving written notice to do so; or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any material breach notice by the terminating Party shall expressly state all the reasons for the claimed breach in sufficient detail to provide the other Party the opportunity to cure the alleged breach.
11.3 Effects of Termination. Upon termination or expiration of the applicable Order, the Customer’s use of the Subscription Services shall cease and the Customer shall uninstall any Provider software (and the Provider may disable access to any such software) and promptly deliver to the Provider the original and all copies of property, equipment, materials and work in progress produced in connection with the performance of the Services (in any form or media within the possession or under the control of the Customer, and including, but not limited to, all software) and the Customer shall take such other action as is required to provide the Provider control over such materials and work in progress, except to the extent same are by the terms of a statement of work to be retained by the Customer after the termination or expiration of these Terms. Termination of an Order will not relieve the Customer of any liability accrued prior to the date of termination. In addition, if an Order is terminated by the Customer for any reason other than those listed in Section 11.2, the Customer will remain responsible for any fees set out in the Order, regardless of whether such amounts have been invoiced or are payable at the time of such termination. However, upon termination of an Order by the Customer for Provider’s breach, Provider will refund to the Customer any unused, prepaid fees covering the remainder of the term of the applicable Order. Termination of an Order will not affect the Parties’ rights and obligations under any other Order, and all other Orders will remain in full force and effect unless and until terminated in accordance with their terms.
11.4 Data Retention and Deletion. For thirty (30) days following expiration or termination of an Order (“Retention Period”), the Customer may at its sole discretion provide a written request to the Provider that: (a) the Provider returns a complete copy of all Standard Personal Data (exported in an CSV format using standard export functions provided by the Subscription Service); or (b) delete and procure the deletion of all copies of Standard Personal Data. The Provider shall have forty five (45) days to comply with any such written request. Promptly following the Retention Period, and in any event within sixty (60) days of the expiry of the Retention Period, the Provider shall delete and procure the deletion of any copies of any Standard Personal Data which has not already been deleted upon the written request of the Customer. Notwithstanding the other terms of this section, the Provider may retain Standard Personal Data to the extent required by Law(s) and only to the extent and for such period as required by Law(s) and always provided that Provider shall ensure the confidentiality of all such Standard Personal Data and shall ensure that such Standard Personal Data is only processed as necessary for the purpose(s) specified in the Law(s) requiring its storage and for no other purpose.
11.5 Suspension. Provider reserves the right to suspend access to the Subscription Service without liability if: (a) the Customer is delinquent on any undisputed late payment obligations for more than thirty (30) days following written notice of such late payment; (b) the Provider reasonably believes that suspension of the Subscription Service is necessary to comply with Law or request of governmental entities; (c) the Provider reasonably determines that the Customer’s use of the Subscription Service poses any security or vulnerability risk to the Provider, the Customer, or the Subscription Service; or (d) if the Provider reasonably determines the security or proper functionality of the Subscription Services may be compromised due to hacking, denial of service attacks, or a security incident involving the Provider’s Services. The Provider will endeavor to give advance notice of any suspension and will restore access to the Subscription Service as soon as the underlying cause is mitigated.
11.6 Survival. If these Terms are terminated for any reason, remedies for breach, rights to accrued payments and Sections 1 (Definitions), 4.1 (Payment Terms), 5.3 (Feedback), 6 (Confidentiality and Data Privacy), 8 (Indemnification), 9 (Limitation of Liability), 11.3 (Effects of Termination), 12 (General).
12. GENERAL TERMS
12.1 Waiver and Severability. No failure or delay by either Party in exercising any right under these Terms will constitute a waiver of that right. All waivers must be in writing and signed by the Party granting the waiver. The waiver by a Party of any of its rights or remedies in a particular instance will not operate as a waiver of any subsequent event or breach by the other Party. If any provision of these Terms is deemed invalid, illegal or unenforceable, that provision will be restated so that it is enforceable to the maximum extent permissible under law and is consistent with the original intent and economic terms of the invalid provision. The remainder of these Terms will remain valid and enforceable in accordance with its terms.
12.2 Subcontractors. The Provider reserves the right to use subcontractors (who are under a covenant of confidentiality with the Provider), including, but not limited to, offshore subcontractors to assist with Services, including, without limitation, data migration, configuration, and implementation processes. The Provider will be and remain fully responsible for the acts and omissions of subcontractors to the same extent as its own employees.
12.3 Non-Solicitation. During the Subscription Term and for twelve (12) months thereafter, neither Party will, directly or indirectly, induce or attempt to induce any employee or consultant of the other Party or any of its Affiliates engaged in the provision, receipt, review or management of the Services to leave the employment of the other Party. Nothing in this Section will preclude either Party from publishing or otherwise making general solicitations of employment not specifically directed towards personnel or hiring personnel because of such general solicitation.
12.4 Force Majeure. Neither Party will be liable for any failure to perform due to circumstances beyond its reasonable control, including without limitation, acts of God; acts of government; natural disasters; fire; civil unrest; acts of terror; pandemic; labor problems (other than those involving such Party’s employees); or Internet or telecommunications service provider failures. A force majeure event will not include a Party’s financial inability to perform its obligations. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
12.5 Assignment. Subject to Section 12.2, either Party may transfer or assign any of its rights or delegate any of its obligations under these Terms, in whole or in part and including any transfers by operation of law, without the prior written consent of the other Party. However, either Party may transfer or assign its obligations under these Terms in their entirety without the consent of the other Party to an Affiliate or in connection with a merger, acquisition, and corporate reorganization, sale of all or substantially all of its assets or a similar transaction. Any attempted assignment or transfer in violation of this Section will be null and void. These Terms will be binding on and inure to the benefit of the Parties and their respective permitted successors and assigns.
12.6 Relationship of the Parties. The relationship between the Parties is that of independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
12.7 Publicity. The Provider may identify the Customer as a customer of the Provider on the Provider’s website as well as within any written and/or electronic marketing material relating to the Provider’s products and/or services.
12.8 Third-Party Beneficiaries. These Terms are for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express, or implied, is intended to or will confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
12.9 Compliance with Laws. Each Party will comply with all Laws in the performance of its obligations under any Order and these Terms, including, without limitation, privacy, anti-bribery and modern slavery laws. Each Party will maintain its own policies and procedures designed to ensure compliance with all Laws.
12.10 Governing Law. All matters arising out of or relating to an Order or these Terms will be governed by and construed under the laws of the province of Manitoba, without regard to its conflicts of laws rules. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. Subject to Section 12.11 hereof, any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to these Terms, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Manitoba.
12.11 Dispute Resolution. If a dispute should arise between the Parties relating to these Terms or any Order, the Parties shall promptly hold a meeting, attended by persons with decision-making authority regarding the dispute, in an attempt in good faith to negotiate a resolution of the dispute; provided, however, that no such meeting shall be deemed to vitiate or reduce the obligations and liabilities of the Parties or be deemed a waiver by either Party hereto of any remedies to which such Party would otherwise be entitled. If the dispute is not resolved within thirty (30) days after the commencement of negotiations, or if no negotiations are commenced within sixty (60) days after one Party notifies the other Party of such dispute, then such dispute may be resolved by formal legal actions. The foregoing process will not apply if expiration of the applicable time for bringing an action is imminent and will not prohibit a Party from pursuing injunctive or other equitable relief to which it may be entitled.
12.12 Notices. Any notice required or permitted to be given will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested or email with confirmation of receipt, to the appropriate Party at the address set out on Order and with the appropriate postage affixed (where applicable). Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 12.12. Notices are deemed given two (2) Business Days following the date of mailing or one Business Day following delivery to a courier or sending of email.
12.13 Export Compliance. Each Party represents that it is not named on any U.S. or U.K. government or United Nations list of persons or entities with which U.S. or U.K. persons or United Nations members are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not permit any Authorized User to access or use the Services in any manner that would cause any Party to violate any U.S., U.K. or international embargo, export control law, or prohibition.
12.14 Entire Agreement and Amendments. These Terms, including the Order(s) and any statement(s) of work, sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, and discussions and understandings, written or oral, with respect to such subject matter. These Terms may not be modified or amended except in writing signed by both Parties. These Terms shall take precedence over any conflicting terms in Customer-provided purchase or procurement documentation, such as a purchase order, acknowledgement form, or other similar documentation. Any pre-printed terms and conditions on or attached to Customer’s purchase orders or invoices will be of no force or effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) these Terms (including the other agreements and documents referenced herein), (b) the applicable Order (except where those terms expressly indicate otherwise) and (c) the Documentation. The titles and headings are for reference purposes only and will not in any way affect the meaning or interpretation of these Terms.