Read our terms and conditions below.
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1. Definitions. All capitalized terms used in this Agreement shall have the meanings defined herein.
2. Access and Use.
a. Provision of Access. Subject to Customer’s payment of Fees and compliance with the terms of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable right to access and use the software-as-a-service offering described in the Order Form (the “Services”) during the Term, solely for use by Customer’s employees (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Services has been purchased hereunder (each an “Authorized User”). Provider shall provide to Customer the necessary requirements to allow Customer to access the Services. The total number of Authorized Users will not exceed the number set forth in the Order Form, except as agreed to in writing by the Parties.
b. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services, in whole or in part; (ii) lend, market, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services; (v) use the Services in any manner or for any purpose that infringes, misappropriates, or violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) share access credentials; or (vi) otherwise use the Services except as authorised herein.
c. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for those expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to Provider IP.
d. Suspension. Provider may suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider determines that (A) there is a threat or attack on any of the Provider IP, (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider, (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities, (D) Customer has ceased to continue its business in the ordinary course or become the subject of any bankruptcy, reorganization, liquidation, or dissolution proceeding, or (E) Provider’s provision of the Services is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5 (any such suspension described above, a “Service Suspension”). Provider shall provide written notice of any Service Suspension to Customer and provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
3. Customer Responsibilities. Customer is responsible for ensuring its organizational compliance with all applicable law including privacy legislation. Customer is responsible and liable for all uses of the Services resulting from access provided by Provider. Customer is responsible for all acts and omissions of Authorized Users and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with Provider’s Terms of Use, a current copy of which is attached. Customer has and will retain sole responsibility for: (a) all Customer Data, including verifying its accuracy, expiry, content, use and disclosure all in accordance with applicable law including privacy legislation; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer information technology infrastructure; (d) the security and use of access credentials of Customer and its Authorized Users; and (e) all access to and use of the Services directly or indirectly by or through the Customer or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services.
4. Service Level. Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance during such times as set out in the Order Form or for unscheduled emergency maintenance, either by Provider or by third-party providers, or because of other causes beyond Provider’s reasonable control.
5. Fees and Payment. Customer shall pay Provider the fees (”Fees”) as set forth in the Order Form. Customer shall make all payments hereunder in the currency set forth in the Order Form on or before the due date set forth in the Order Form. If Customer fails to make any payment when due: (i) Provider may charge interest on the past due amount at the rate of 12% per annum; and (ii) if such failure continues, Provider may suspend Customer’s and its Authorized Users’ access to the Services until such amounts are paid in full. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all harmonized sales tax, provincial sales tax, goods and services tax and any other similar taxes, duties and charges of any kind imposed by any governmental entity on any amounts payable by Customer hereunder.
6. Confidential Information. During the Term, either Party may disclose or make available to the other Party information about its business affairs, products, intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property.
a. Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest in and to (i) the Services including all improvements, enhancements or modifications thereto, (ii) any software, source code, applications, inventions or other technology developed in connection with the Services and related support and (iii) all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence, under or related to any patent, copyright, trademark, trade secret, know-how, process, database protection, or other intellectual property provided to Customer or any Authorized User in connection with the foregoing (the “Provider IP”). For the avoidance of doubt, Provider IP does not include Customer Data.
b. Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services (“Customer Data”). Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide licence to reproduce, distribute, and otherwise use and display Customer Data and perform all acts with respect to Customer Data as may be necessary for Provider to provide the Services including sharing any such Customer Data publicly in compliance with applicable law.
c. End User Data. Customer consents to Provider (i) collecting, gathering, compiling and analyzing the data arising from the use of the Services, (ii) compiling or otherwise combining this data with similar data of other users of the Services, and (iii) utilizing such compiled or combined data to (x) operate, manage and develop the Services, (y) undertake research and analysis and (z) develop and offer additional services and products to Customer and/or third parties, so long as such data is compiled or combined in a manner that will not in any way reveal the data as being attributable to Customer, its businesses, operations or undertakings or its partners, suppliers, licensors, customers or others with whom Customer interacts.
d. Third Party Software. Customer acknowledges that: (i) the Services operate in, connects to and/or interfaces with certain third party operating systems, applications and other software, that Customer is responsible for obtaining, installing, supporting and maintaining such software, and that Provider shall not, unless otherwise agreed to by the parties, be responsible for obtaining, installing, supporting or maintaining any such software; and (ii) certain third party software may incorporated into the Services and that the such third party software is licensed to Customer as part of the Services and may be subject to additional terms as more particularly set out in the Order Form, and that this Agreement does not grant Customer the right the use such third party software in any manner other than in connection with Customer’s authorised use of the Services in the manner provided herein.
e. Modifications. Customer may request additional features in the Services, provided, however, that (i) Customer shall waive any claim or right to such features should features be developed by Provider; (ii) Customer shall be prohibited from developing the feature, or disclose such feature request to any person, or disclose the feature to any person without the written approval of Provider; (iii) Customer warrants that such requested feature does not infringe any person’s patent, trademark, trade-secret or any other intellectual property right or any kind, wherever held in the world; and (iv) Customer conceived, envisioned or devised the requested feature to address a specific need of Customer. The development of the feature or features by Provider shall be subject to the terms of a separate agreement between Provider and Customer and at additional cost to Customer over and above the fees paid by Customer under this Agreement, and with separate support costs to be agreed between Provider and Customer.
8. Warranty Disclaimer. Provider IP and the Services are provided “as is” and Provider hereby disclaims all warranties and conditions, whether express, implied, statutory, or otherwise. Provider specifically disclaims all implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Provider makes no warranty of any kind that the Provider IP and/or the Services, or any products or results of the use thereof, will meet Customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error free.
9. Indemnification. Customer shall indemnify Provider, including its directors, officers, agents, employees and affiliates from and against any claims, demands, or causes of action whatsoever relating to the Agreement, including without limitation those arising on account of Customer’s use of the Services and any breach of this Agreement by Customer, its officers, employees, agents or representatives. In no event shall Provider, its directors, officers, employees, agents, contractors or affiliates, be liable for: (i) any indirect, special, incidental, consequential or exemplary damages; (ii) any other damages arising out of or in any way related to the use or inability to use the Services; (iii) damages or costs relating to the loss of profits, savings, business, goodwill, data, or computer programs; (iv) punitive, exemplary or aggravated damages; (v) any damages whatsoever relating to third party products or services; (vi) any damages relating to interruptions, delays, errors or omissions; (vi) any damages whatsoever relating to use or misuse of Customer Data. Provider’s cumulative liability from any loss or damage resulting from any claims, demands or actions arising out of this Agreement shall be limited to the amount paid for the Services.
10. Term and Termination.
a. Term. The term of this Agreement shall begin on the Effective Date and unless terminated earlier pursuant to this Agreement will continue in accordance with the dates set out in the Order Form (the “Term”).
b. Provider Termination. Provider may terminate this Agreement for convenience, effective on thirty (30) days written notice.
c. Mutual Termination. Either Party may terminate this Agreement, effective on written notice:
i. if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
ii. if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts; (B) files or has filed against it, a petition for bankruptcy or becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
d. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
e. Survival. This Section 10(e) and Section 1 (Definitions), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Intellectual Property Ownership), Section 8 (Warranty Disclaimer), 9 (Limitation of Liability), and Section 11 (Miscellaneous) shall survive any termination or expiration of this Agreement.
11. Miscellaneous. This Agreement, together with any other documents incorporated herein by reference and all related Order Forms, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements. Notices under this Agreement are to be in writing and are to be delivered by postage-paid envelope, personal delivery or email. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. This Agreement will be governed and interpreted in accordance with the laws of Ontario. Customer may not assign this Agreement without the prior written consent of Provider. Customer approves Provider may undertake reasonable promotional activities in relation to the provision of the Services by Provider under this Agreement and Customer hereby consents to Provider using Customer’s logo on Provider’s website for such purposes. IBI is entitled to assign certain invoicing matters and elements of the scope to any of its affiliates to ensure compliance with applicable laws and internal IBI policies and procedures. No Party is liable for damages caused by delay or failure to perform its obligations under this Agreement where such delay or failure is caused by an event beyond its reasonable control. Provider and Customer will make every reasonable effort to resolve any disagreement, conflict or controversy, in any form, arising between Provider and Customer in connection with this Agreement by amicable, confidential negotiations.
