Master Subscription Agreement August 2022
Version 3.0 | August 19, 2022
STANDARD TERMS AND CONDITIONS:
By executing a Proposal and accessing the Service(s), you have entered into a legally binding contract with DistillerSR Inc. (“Vendor” or “we”/“our”) for access to and use of the Service(s), and you are agreeing, individually and/or on behalf of the company/entity whose information you provided during the registration process, or within a Proposal (“User” or “You”), to be bound by the Agreement (as defined below), including the terms set out herein.
This MSA (defined below), as amended from time to time, sets forth the terms and conditions which govern your subscription and purchase of, access to, and use of, the Service(s) (defined below). To use the Service(s), you must agree to be bound by the Agreement as a whole, including the terms of this MSA.
If you are executing the Proposal and/or accessing and using the Service(s) on behalf of a business, corporation, government agency, university, or other entity or organization (“Entity”), you represent and warrant that you: (i) have the authority to legally bind such Entity; and (ii) that you are duly authorized to enter into the Agreement on behalf of such Entity. In that event, all references to “Customer” and “you” in the Agreement shall be a reference to either (1) you as an individual User (if signing on your own behalf); or (2) the Entity on whose behalf you are subscribing to, accessing, and using the Service(s).
The Parties expressly agree that the terms and conditions of the Agreement, including the relevant Proposal cannot be amended, supplemented or varied by any terms and conditions contained in or provided with any Customer transaction document (for example, a Customer purchase order) or any other communication between the Parties, regardless of what would otherwise be the outcome under applicable law (including the common law and any statutes or pieces of legislation (for example, the Uniform Commercial Code)) or rules of construction (for example, later-in-time, general vs. specific). Each Party expressly rejects any such different or additional terms or conditions and agrees that any such terms shall be void and of no force or effect (excluding Proposal).
1. Definitions.
“Acceptable Use Policy” means the policy linked hereto outlining instructions for proper use of the Service(s) as well as many prohibited activities which Customer is responsible for ensuring all Users comply with prior to accessing the Service(s). For greater certainty, no User will be permitted to access to the Service(s) unless they agree to the Acceptable Use Policy.
“Agreement” means the Proposal, this MSA, the Acceptable Use Policy, the Privacy Statement, and all referenced documents within an applicable Proposal that combine to form the entire agreement between the Parties, subject to Section 12.10.
“Applicable Law” means all laws, statutes, common law, regulations, ordinances, codes, rules, guidelines, orders, permits, tariffs and approvals, including those relating to the environment or health and safety, of any governmental or regulatory authority that apply to the Parties or the subject matter of the Agreement.
“Customer” means the customer accepting the Agreement and identified within the applicable Proposal, including the Entity on whose behalf such customer has entered into the Agreement.
“Customer Agent” means a person identified in any Proposal(s) who represents Customer and who is authorized to make commitments and decisions on behalf of the Customer regarding the performance of the Agreement.
“Customer Data” means all electronic data or information (i) uploaded by the Customer’s Users in the process of using the Service(s); (ii) calculated and populated in a form(s) by the Service(s) as part of the Customer created workflow following the uploading of such electronic data and/or information; (iii) created as a result of additional inputs by the Customer’s Users in the process of using the Service(s); and/or, (iv) generated by the Service(s) in the form of output data (i.e. reports) received by the Customer, but does not mean output formats, layouts or features that are intrinsic to the Service(s).
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“MSA” means this master subscription agreement.
“Party” or “Parties” means either the Customer or the Vendor, or a combination of both.
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. For greater certainty, personal data does not include information that is anonymized or aggregated.
“Process” and similar terms mean any operation or set of operations which are performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Proposal” means the ordering document generated by the Vendor for Customer’s purchases of Vendor Service(s) that are executed thereunder by the Parties from time to time, specifying, among other things, a description of the Service(s) offered to, and purchased by, the Customer as well as the pricing terms for such Service(s) that are purchased by Customer. Proposals may also be casually referred to as, order forms, quotes, statements of work, or work orders.
“SaaS” means “Software as a Service”.
“Service(s)” means any and all services and Software provided by Vendor to the Customer as described in one or more Proposals (including the Vendor’s Web-based applications, DistillerSR™, CuratorCR™, DAISY AI Classifiers, or any other services or applications that may be offered from time to time), including associated offline components. Each service applicable to the Customer is described in the applicable Proposal(s).
“Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by Vendor. For greater certainty, the software is distributed to the Customer through the Vendor’s SaaS model and includes software accessed by the Customer’s Users through the Internet or other remote means (such as websites and “cloud-based” applications), and Users do not download any software as part of the Customer’s subscription for Service(s).
“Support Service(s)” means the support, maintenance and training Service(s) provided or to be provided by the Vendor to the Customer. Support service(s) may be included as part of a Customer’s subscription for the Service(s) or purchased for an additional fee, all of which are more fully described in the applicable Proposal(s).
“Subscription Term” means the period of time between the date on which a User is granted access to the Service(s) and the date on which such access expires. Subscription terms can be extended or renewed to maintain access at the prices and on the terms then in effect at the time of such extension or renewal, as specifically set out in an applicable Proposal.
“Term” means the term of the Agreement, which commences on the Effective Date and continues until all User subscriptions granted in accordance with the Agreement have expired or been terminated.
“User Guide” means the online user guide for the Service(s), as updated from time to time.
“Users” means individuals, including You, who are authorized by Customer to use the Service(s), for whom subscriptions to the Service(s) have been purchased, and who have been supplied user identifications and passwords by Customer (or by Vendor at Customer’s request). Users may include employees, consultants, contractors and Customer Agents of Customer or its affiliates.
“Vendor” means DistillerSR Inc., a company amalgamated under the laws of Canada, having its principal place of business at 505 March Rd, Suite 450, Ottawa, ON, Canada K2K 3A4.
2. Service(s).
2.1 Provision of Service(s). Vendor shall make the Service(s) available to Customer and its Users pursuant to the applicable Proposal(s) during the Term. For greater certainty, by purchasing a subscription for the Service(s), the Customer is purchasing the right to access and use the Service(s) in accordance with the terms of the Agreement. The subscription is for the number of simultaneous users authorized in the applicable Proposal, with each subscription authorizing one user to use the Service(s). For example, in a five-user concurrent use subscription, after five users are logged on to the program, the sixth user is prohibited until one of the first five logs out. Customer agrees that its purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Vendor with respect to future functionality or features.
2.2 AI Classifiers – Acknowledgement of Accuracy. Customer acknowledges that the accuracy and proper functionality of the DAISY AI Classifier is dependent on the quality of the training set, or any other datasets that Customer or Users may employ when using the DAISY AI Classifiers, and Vendor shall not be responsible if the results generated by the DAISY AI Classifier are inaccurate or contain errors.
2.3 Additional Users. Unless otherwise specified in the applicable Proposal, User subscriptions are for a designated number of concurrent Users and cannot be shared or used by more than the designated number of concurrent Users. Unless specified in the applicable Proposal, (i) the term of the additional User subscriptions shall be coterminous with the expiration of the Subscription Term in effect at the time the additional Users are added; and (ii) pricing for the additional User subscriptions shall be the same as that for the pre-existing subscriptions, prorated for the remainder of the Subscription Term in effect at the time the additional Users are added.
2.4 User Subscription Terms. Unless otherwise (i) specified in the Agreement or in any additional Proposals; or (ii) requested by Customer, User subscriptions may be renewed upon mutual agreement by the Parties unless either Party gives the other written notice of non-renewal at least thirty (30) days prior to the end of the relevant Subscription Term. The Parties agree that any renewed subscriptions shall be on the terms set forth in the Agreement or as otherwise agreed to in writing.
3. Use of the Service(s).
3.1 Vendor Responsibilities. Vendor shall: (i) maintain the integrity of the Service(s); (ii) provide certain Support Services to Customer’s Users, at no additional charge as more fully described in the applicable Proposal (additional support services may be purchased from Vendor for a fee and shall be specified in the applicable Proposal(s)); and (iii) use commercially reasonable efforts to make the Service(s) available 24 hours a day, 7 days a week, except for (each of the following being an “Exception”): (a) planned downtime (of which Vendor shall give at least 8 hours’ notice via the Service(s) and which Vendor shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. EST/EDT Friday to 3:00 a.m. EST/EDT Monday); (b) any unavailability caused by a Force Majeure Event as outlined in Section 13; (c) any computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Vendor’s possession or reasonable control; or (d) security breaches or denial of service attacks of Customer systems or to the extent caused by Customer Data.
3.2 Vendor Maintenance of Projects. All Customer projects will be automatically updated (along with Customer Data) to the most recent version of the Service(s), at no extra charge to the Customer, provided that the Customer’s Subscriptions and account are current, and all payment obligations have been fulfilled. Customer acknowledges that Vendor shall have no obligation to maintain or update any projects, active or inactive, if Customer’s Subscription has lapsed or expired, or Customer’s payment obligations have not been fulfilled.
3.3 Customer Responsibilities. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with the Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use the Service(s) in compliance with the User Guide and Use Guidelines described in Section 3.3; (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service(s), and notify Vendor promptly of any such unauthorized access or use; (iv) ensure that it and its Users agree to and comply with the Acceptable Use Policy before and while accessing the Service(s); and (v) comply with all Applicable Laws in using and uploading Customer Data to the Service(s).
3.4 Customer Maintenance of Projects. Customer acknowledges where the Customer’s Subscriptions have lapsed or expired for more than one (1) year, Vendor cannot and does not guarantee the forward compatibility of prior projects in the event that the Customer desires to resubscribe and continue such prior project. If Customer requires their project or data to be compatible with all future releases and updates to the Service(s), Customer is responsible for ensuring that their account remains current and all payment obligations are fulfilled.
3.5 Use Guidelines. Customer shall use the Service(s) solely for its internal business purposes as contemplated by the Agreement and ensure it and its Users use the Service(s) in compliance with the Acceptable Use Policy.
3.6 Publicity. Neither Party shall issue press releases or otherwise publicize the Parties’ relationship relating to the Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, Vendor may use and/or otherwise display Customer’s name and logo on its website, sales, marketing, and training collateral. If Customer does not want Vendor to use or otherwise display Customer’s name and/or logo, Customer may opt-out by emailing Vendor at [email protected] with the subject line “Opt-Out of Publicity Terms,” in which case Vendor shall note your preference in your account in accordance with Section 12.11 – Opt-Out Terms.
4. Fees & Payment.
4.1 User Fees. Customer shall pay all fees specified in the Proposal(s) hereunder. Except as otherwise provided in the applicable Order Form, all fees are quoted and payable in the currency as specified in the applicable Proposal. Except as otherwise specified in Section 11 herein, under the applicable Proposal: (i) fees are based on Service(s) purchased and not actual usage; (ii) subject to Section 11 – Termination, payment obligations are non-cancelable; (iii) subject to Section 11 – Termination, fees paid are non-refundable; and (iv) the number of subscriptions purchased cannot be decreased during the relevant Subscription Term stated in the applicable Proposal. Fees for subscriptions purchased in the middle of a monthly period will be charged for that monthly period in full and going forward based on the number of monthly periods remaining in the Subscription Term.
4.2 Invoicing & Payment. Fees for the Service(s) will be invoiced in advance and otherwise in accordance with the applicable Unless otherwise stated in the applicable Proposal, charges are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate contact and billing information on the Service(s).
4.3 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Vendor’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4 Suspension of Service(s) Suspensions may occur is Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute) or in the event of a violation of the Agreement. Vendor reserves the right to suspend the Service(s) provided to Customer, without liability to Vendor, until such amounts are paid in full or violation is resolved.
4.5 Taxes. Unless otherwise stated, Vendor’s fees do not include any direct or indirect local, provincial, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Vendor’s net income or property. If Vendor has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Vendor with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Proprietary Rights.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Vendor reserves all rights, title and interest in and to the Service(s), including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service(s); (ii) frame or mirror any content forming part of the Service(s), other than for its own internal business purposes; (iii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Service(s), in whole or in part or (iv) access the Service(s) in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Service(s).
5.3 Customer Data. As between Vendor and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under the Agreement. Vendor shall not access Customer’s User accounts, including Customer Data, except where permitted by account administrators, to evaluate system usage, performance or capacity, respond to service requirements or technical problems (including support, development, and professional services as required and requested by Customer), to respond if a suspected breach of the Agreement has occurred, or at Customer’s request. Notwithstanding the foregoing, Vendor may use Customer Data for purposes other than those described above only with the express written agreement or consent of the Customer.
5.4 Representation. Customer represents that Customer has all necessary rights to Customer Data, including all necessary rights to upload it to Vendor servers for the purpose of using the Service(s). Customer also represents that Customer is not infringing or violating any third party’s rights by uploading the Customer Data or using the Customer Data through the Service(s).
5.5 Suggestions. Vendor shall have a royalty free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service(s) any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Service(s).
6. Privacy Rights.
6.1 Collection of Personal Data by Vendor. Customer acknowledges that Vendor collects limited Personal Data from Customer and Customer’s Users in accordance with the purposes set out in Vendor’s Privacy Statement, which forms part of and is incorporated by reference to the Agreement, which includes the collection of Personal Data for the maintenance of Vendor’s audit trail as required to maintain regulatory compliance. If Vendor’s use (whether directly or indirectly) of the Personal Data collected pursuant to Vendor’s Privacy Statement is contrary to any applicable privacy laws, including all provincial, state, federal, and international laws, regulations, and national government agency orders and decrees (“Privacy Laws”), or contrary to any of the restrictions set forth in the Agreement, Customer shall have the right to: (a) terminate the Agreement for cause if such breach has not been cured within five (5) days of receipt by Vendor of written notice, and (b) pursue any other legal and equitable remedies.
6.1 Prohibition on Uploading of Personal Data. Notwithstanding the foregoing, Customer acknowledges and agrees that the uploading of any Personal Data, including personal health information (“Prohibited Personal Data”) is prohibited by Vendor, and Customer shall ensure that Customer’s Users do not upload any data or information that may be considered Prohibited Personal Data. Any uploading of such Prohibited Personal Data to Vendor’s Service(s) shall be deemed a violation of this MSA, and considered a material breach of the Agreement. Customer accepts all responsibility and liability for data uploaded to Vendor’s Service(s) in violation of any applicable Privacy Laws. For clarity, Personal Data (including author’s names and business contact information on published medical journals/articles) that has been published and is uploaded by Customer in the normal course of using the Service(s) shall not be deemed to be Prohibited Personal Data under the Agreement.
6.2 Sharing or Selling of Personal Data. The Parties hereby warrant and represent that no Personal Data will be shared with any third parties except as required to provide the Service(s), by the Agreement, or applicable law. Both Parties agree that no Personal Data will be sold to any third parties under any circumstances.
6.3 Transfer & Storage of Customer Data. Customer acknowledges and agrees that all Customer Data and any Personal Data collected pursuant to Vendor’s Privacy Statement is hosted by Amazon AWS and is stored and processed in their US East-1 data centre, in Canada, or (at Customer’s request and subject to additional fees), on Vendor’s EU instance located on Amazon AWS’ EU West-1 data centre. Customer represents and warrants that Customer has obtained any and all rights and/or consent required from its Users and any other individuals or data subjects from whom Personal Data was collected, and has made such Users, individuals, and/or data subjects aware of the fact that their data may be transferred across international borders, including Canadian, United States, and international borders, and will be stored in either the United States or, upon Customer’s request, in the Republic of Ireland. Customer hereby consents and agrees to the transfer of Customer Data across international borders, and the storage of Customer Data in the United States of America, Canada, and/or the Republic of Ireland and expressly instructs such transfer.
7. Confidentiality
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party“) disclosed to the other Party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the Agreement (including any pricing, amended, excluded or additional negotiated contract terms reflected in schedules, exhibits, or addendums to the Agreement), the Customer Data, the Service(s), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party including the standard forms of Agreement available through Vendor’s webpage; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, except with the Disclosing Party’s prior written permission.
7.3 Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
8. Warranties & Disclaimers.
8.1 Warranties. Each Party represents and warrants that it has the legal power to enter into and be bound by the terms of the Agreement and any Proposal(s). Customer represents and warrants that it has obtained all necessary rights and consents from its Customers, Users, data subjects, and/or copyright holders to upload the Customer Data to the Service(s). Vendor represents and warrants that (i) it will provide the Service(s) in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service(s) shall perform materially in accordance with the User Guide; (iii) the functionality of the Service(s) will not be materially decreased during the Term; (iv) the Service(s) will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User-uploaded attachments or otherwise originating from Users); (v) it owns or otherwise has sufficient rights in the Service(s) to grant to Customer the rights to use the Service(s) granted herein; and (vi) the Service(s) does not infringe any intellectual property rights of any third party. Customer represents and warrants that it is not currently listed as a restricted party on any of the following countries’, or regulatory authorities, lists of sanctions, embargos, debarred, or restricted parties: Canada, United States, European Union (“EU”), United Nations (“UN”), U.S. Federal Drug Administration (“FDA”), or any other regulatory authority lists. Vendor reserves the right to prohibit and/or suspend access to Service(s) to any entity or individual from a sanctioned or embargoed country or restrict access or use of the Service(s) to any restricted party based on any of the above-mentioned countries’ governments or regulatory authorities list. Customer is solely responsible for obtaining any necessary export license or other approval to transfer Customer Data in connection with its use of the Service(s).
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, VENDOR MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITH RESPECT TO THE USE OF THE SERVICE(S), VENDOR MAKES NO EXPRESS OR IMPLIED WARRANTY THAT SERVICE(S) ARE OR WILL BE ENTIRELY SECURE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF PROGRAM LIMITATIONS. Customer shall be solely responsible for any and all breaches resulting from its OR ITS USERS access to the Service(s) from an unsecure place or network, or from a jurisdiction that monitors national internet use.
9. Indemnification
9.1 Mutual Indemnification. Subject to the Agreement, each Party (“Indemnifying Party”) shall defend, indemnify, and hold the other Party (“Indemnified Party”) harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Indemnified Party by an arm’s length third party alleging that the Service(s), use of the Service(s), or Customer Data uploaded to the Service(s) as contemplated hereunder infringes the intellectual property or privacy rights of such third party, provided that the Indemnified Party: (a) promptly gives written notice of the Claim to Indemnifying Party; (b) gives Indemnifying Party sole control of the defense and settlement of the Claim, provided that Indemnifying Party may not settle or defend any Claim unless it unconditionally releases Indemnified Party of all liability; and (c) provides reasonable assistance to Indemnifying Party, at Indemnifying Party’s cost.
9.2 Exclusions. Indemnifying Party’s obligation to indemnify the Indemnified Party pursuant to Section 9.1 shall not apply where (a) Indemnified Party has breached any material obligations under the Agreement, in whole or in part, including any schedules, exhibits, addenda, or attachments thereto; (b) Indemnified Party has violated any Applicable Law; (c) Indemnified Party has acted or failed to act, willfully or negligently, in any manner that contributed to the events leading to the Claim, or (d) indemnified Party’s Users have uploaded or inputted Malicious Code, prohibited Personal Data, or electronic data or information without such third party’s authorization or permission. The Parties agree that the amount of the Claim for which Indemnifying Party is obligated to indemnify Indemnified Party shall be reduced by the proportionate amount by which an adjudicator of fact finds Indemnified Party to have contributed to or caused the Claim, or that is the basis of an indemnity obligation of Indemnified Party.
10. Limitation of Liability.
10.1 Limitation of Liability. IN NO EVENT SHALL VENDOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER AMOUNT OF FIVE HUNDRED THOUSAND CANADIAN DOLLARS (CAD $500,000.00) OR TWO TIMES THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL VENDOR HAVE ANY LIABILITY TO THE CUSTOMER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Exclusions. THE LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 10.1 AND 10.2 SHALL NOT APPLY TO DAMAGES ARISING FROM: (i) A PARTY’S OBLIGATIONS WITH RESPECT TO CONFIDENTIALITY; (ii) INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY OR PRIVACY RIGHTS, (iii) ARISING FROM A PARTY’S GROSS NEGLIGENCE, RECKLESSNESS, INTENTIONAL OR WILLFUL MISCONDUCT, OR (iv) A VIOLATION OF ANY APPLICABLE LAW.
11. Termination.
11.1 Termination for Cause. A Party may terminate the Agreement for cause: (i) upon 30 days written notice of a material breach to the other Party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, Vendor shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination.
11.2 Termination for Convenience. Customer may terminate an applicable Proposal, or the Agreement and all active subscriptions, for convenience upon 90 days prior written notice to the Vendor. Upon the termination of the Agreement or a Proposal for convenience, Customer shall pay to Vendor all undisputed amounts due and payable hereunder, if any, and Vendor shall pay to Customer all amounts due and payable hereunder, such as the ratable refund of prepaid fees, if any. For greater certainty, termination of a Proposal under this Section 11.2 shall only terminate that specific Proposal; however, termination of the Agreement shall terminate all outstanding Proposals.
11.3 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Vendor prior to the effective date of termination.
11.4 Return of Customer Data. Upon request by Customer made within 60 days after the effective date of termination, Vendor will make the Service(s) available to Customer on a limited basis to download a file of Customer Data in comma separated value (.csv) format (or such other format as agreed to), provided that Vendor has or retains the ability to provide the above-mentioned access to the Service(s) and Customer Data at the time of Customer’s request under this Section 11.4, and Customer remains compliant with its obligations under the Agreement. After such 60-day period, Vendor shall have no obligation to maintain or provide any Customer Data and may, at Vendor’s discretion, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. Notwithstanding the foregoing, nothing in this Section 11.4 shall be construed to require the deletion of any items of Customer Data or Confidential Information that are (i) contained in Vendor’s audit trail as required for regulatory compliance; or (ii) contained in electronic form on archive systems or other disaster recovery systems, from which such items cannot reasonably be deleted.
11.5 Surviving Provisions. The following provisions of this MSA shall survive any termination or expiration of this MSA: Sections 4 through 12.
12.0 General Provisions.
12.1 Relationship of the Parties. The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
12.2 Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to the Agreement or the breach thereof, the Parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties. If they do not reach such solution within a period of sixty (60) days, then, upon notice by either Party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration in accordance with the Arbitration Act (Ontario) administered by the Canadian Arbitration Association in accordance with the provisions of its Arbitration Rules. Such arbitration shall take place in Ottawa, Ontario, and shall be conducted in English. If Customer is unable to accept mandatory arbitration as the overriding dispute resolution mechanism, Customer may opt-out by emailing Vendor at [email protected] with the subject line “Opt-Out of Arbitration,” in which case Vendor shall note such selection in Customer’s account in accordance with Section 12.11 – Opt-Out Terms. No Party to the Agreement will challenge the governing law provisions as provided in Section 12.3. Nothing in this section shall serve to limit a Party’s rights to seek injunctive relief.
12.3 Governing Law and Waiver of Jury Trial. The Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to its conflict of laws provisions. Notwithstanding the obligation on the Parties to arbitrate any disputes arising out of or relating to the Agreement (if Customer has not elected to opt-out of binding arbitration), the Parties acknowledge and agree that each Party shall retain their right to commence an action for enforcement of an arbitral award against the other solely for the purposes of enforcing the arbitral award, and any provision mandating a specific court or exclusive jurisdiction for same shall be null and void. The Parties shall be free to bring such enforcement action in any appropriate jurisdiction, having regard to all circumstances, including, without limitation, the location of the other Party’s assets. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement.
12.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement.
12.5 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under the Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
12.6 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement shall remain in effect.
12.7 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign the Agreement in its entirety, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that the assigning Party provides the non-assigning Party with notice of such assignment at least thirty (30) days following the closing of any such transaction. If such assignment is not acceptable to the non-assigning Party, such Party may terminate the Agreement for convenience. Any attempt by a Party to assign its rights or obligations under the Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
12.8 Valid and Non-Valid Clickthrough Agreements. The Parties agree that any provisions in any additional agreements, addendums, purchase orders, or exhibits purporting to invalidate any clickthrough provided by the Vendor is null and void. The Parties further agree that any clickthrough provided by the Customer addressing the Vendor’s intellectual property, insurance requirements/policies, or other terms of the Agreement is invalid.
12.9 Notice. All notices under the Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Vendor shall be addressed to the attention of its Chief Executive Officer at the 505 March Road, Suite 450, Ottawa, ON, Canada, K2K 3A4, with a copy to its General Counsel at [email protected]. Notices to Customer shall be delivered by e-mail and addressed to the Customer account holder and/or account administrator and applicable Users and shall be sent to the e-mail address provided at time of account set-up.
12.10 Entire Agreement. The Agreement shall constitute the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement shall be effective, including any additional addenda, schedules, or exhibits, unless in writing and signed by both Parties. Notwithstanding the foregoing, the non-Proposal portions of the Agreement may be amended by Vendor from time to time, provided notice of such amendments is given, if required. Unless otherwise specifically stated in an applicable Proposal, to the extent of any conflict or inconsistency between the provisions of this MSA, the Acceptable Use Policy, the Privacy Statement, and any applicable Proposal(s), the terms of this MSA shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, invoice, or in any other Customer order documentation (excluding Proposals) shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void.
12.11 Opt-out Terms. In the event that Customer chooses to opt-out of: (i) the logo permissions in Section 3.6 – Publicity; or (ii) the mandatory arbitration terms set out in Section 12.2 – Dispute Resolution, Vendor shall note such decision in Customer’s account and such opt-out shall continue to apply regardless of any updates, revisions, or changes to this MSA unless Customer has indicated, in writing, an intention to opt back in.
13. Force Majeure Events.
13.1 Force Majeure. Vendor shall not be liable to Customer for delay or failure to perform its obligations under the Agreement if prevented from performing its obligations as a direct result of an event including, but not limited to, an act of God, fire, flood, explosion, civil disturbance, act of terrorism or war, interference by civil or military authority, accident, internet connectivity failure, pandemic (including COVID-19 and related variants), epidemic, global pandemic or epidemic, global outbreak, public health emergency, state of emergency as declared by any level of government in a relevant jurisdiction, strike, labor dispute or shortage, illegality under any governmental law, rule or regulation, or for any other similar causes beyond the reasonable control of the non-performing Party (each such event, a “Force Majeure Event”), provided that Vendor has provided requisite notice to Customer pursuant to Section 13.3.
13.2 Suspension of Service(s). In the event that a Force Majeure Event befalls Customer or its Users and prevents them from accessing or using the Service(s), Vendor may, at its sole discretion, temporarily suspend the Service(s) and Subscription Term for a period equivalent to the time Customer is unable to use the Service(s), provided that Customer gives written notice to the Vendor pursuant to Section 13.3. Once Customer notifies Vendor that use may resume, Vendor shall make the Service(s) available to Customer for the period remaining in the Subscription Term. For further clarity, the Subscription Term is calculated based on the amount of time in which the Customer has access to the Service(s) and does not include the time in which the Service(s) were suspended under this section, and no fees will accrue for the period of time during which Customer is unable to access the Service(s) due to a Force Majeure Event affecting Vendor. Notwithstanding the foregoing and other terms in the Agreement, Customer shall not be relieved of their performance or payment obligations for the period of time where Customer had access to the Service(s) under the Agreement.
13.3 Notice Requirements. A Party seeking to rely on either Sections 13.1 or 13.2, as applicable, shall, without undue delay, provide prompt written notice to the other Party and thereafter provide periodic updates of the Force Majeure Event and the Party’s own status, and shall use reasonable efforts to mitigate the effect of the Force Majeure Event on the performance of its obligations. If the Parties agree that performance is impossible for the remainder of the Subscription Term because of the Force Majeure Event, the other Party may terminate the Agreement within 15 days from the time notice under this Section 13.3 was received by the other Party. In the event of termination, fees are due for the period of time where Customer had access to the Service(s) prior to the suspension of the Service(s) under Section 13.2. To the same effect, where fees were prepaid and Customer does not have an outstanding invoice, fees shall be refunded by Vendor on a pro rata basis.