做厙勛圖 Inc. (做厙勛圖) owns certain software that it has developed and makes available to its customers in English as a service offering (the 做厙勛圖 做厙勛圖 or 做厙勛圖).
In connection with the use of the 做厙勛圖 做厙勛圖 (as defined below), you and/or your organization or corporation, including affiliates (collectively, the Customer) hereby agree to the terms of service and conditions contained herein (collectively, the Terms of Service).
BY ACCEPTING THESE TERMS OF SERVICE (THE TERMS OF SERVICE) BY SIGNING THE ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THE TERMS OF SERVICE, OR USING, OR ACCESSING THE SERVICE AFTER BEING MADE AWARE OF THESE TERMS OF BRIDGIT PLATFORM, CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY ORDER FORM AND INCLUDING BRIDGITS PRIVACY POLICY, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE AGREEMENT ENTERED INTO BETWEEN BRIDGIT AND THE CUSTOMER.
IF, AFTER READING THESE TERMS OF SERVICE, CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, CUSTOMER SHALL NOT USE, OR ACCESS THE BRIDGIT PLATFORM.
IF YOU ARE AN AGENT OR EMPLOYEE OF CUSTOMER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) YOU ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON CUSTOMERS BEHALF AND TO BIND CUSTOMER, AND (II) CUSTOMER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
INTERPRETATION
1.1 Definitions. For the purposes of this Agreement, the following capitalized terms have the meanings set out below:
(a) Agreement means the Order Form and these Terms of Service.
(b) 做厙勛圖 做厙勛圖 or 做厙勛圖 means, collectively, 做厙勛圖s proprietary online, web-based platforms, including without limitation 做厙勛圖 Bench, as may be amended or developed from time to time, and including any and all Enhancements and New Features.
(c) Claim has the meaning ascribed in Section 11.1.
(d) Confidential Information means the information of a Party, or of third parties to which such Party has a duty of confidentiality, of a confidential and proprietary nature (whether in written, electronic or oral form), whether such information is or is not marked or identified as confidential or proprietary, including without limitation all Intellectual Property, financial, business or technical information, marketing and financial plans and data. Confidential Information does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully; (ii) becomes publicly known without fault of the receiving party; (iii) is independently developed by the receiving party; (iv) is approved for release in writing by the disclosing party; or (v) is disclosed without restriction by the disclosing party to a third party.
(e) Customer Data means data submitted by or for Customer or Customer Users or collected and processed by or for Customer using the 做厙勛圖 做厙勛圖, including the data of and Personal Information belonging to Customer and Customers Users .
(f) Customer User(s) means any employee or contractor of Customer using the 做厙勛圖 做厙勛圖 as a result of his, her or its affiliation with or connection to the Customer.
(g) Documentation means the written or electronic program documentation, including user manuals, handbooks and other materials that 做厙勛圖 generally makes available describing the use, design, installation, operation and maintenance of the 做厙勛圖 做厙勛圖 or in the delivery of the Services.
(h) Enhancements means improvements and other changes intended to improve the performance of the 做厙勛圖 做厙勛圖.
(i) Fee means the Initial Term Fee and the Renewal Term Fee, as applicable.
(j) Implementation Services has the meaning ascribed to it in Section 6.1.
(k) Initial Term has the meaning ascribed to it in Section 12.1.
(l) Initial Term Fee has the meaning ascribed in Section 4.1.
(m) Intellectual Property includes without limitation any and all software (in object and source code form), inventions (whether or not patentable), trade secrets, ideas, techniques, processes, formulas, algorithms, schematics, research, development, software design and architecture, testing procedures, design and functional specifications, problem reports and performance information media content, distribution content, instructions, specifications, engineering designs, concepts, models, technology, patents, trademarks, trade secrets, and know-how.
(n) Intellectual Property Rights means all rights in Intellectual Property, whether protectable by copyright, trademark, patent, industrial design or trade secret laws and other intellectual property rights under laws, including common law.
(o) New Features means the addition of new functionality in the 做厙勛圖 做厙勛圖 upon the payment of additional fees by Customer.
(p) Order Form means a document executed between 做厙勛圖 and Customer, in respect of Customers purchase of a subscription to use the 做厙勛圖 做厙勛圖 and Services from 做厙勛圖.
(q) Personal Information means any information relating to or about an identifiable individual as defined under Privacy Laws.
(r) Privacy Laws means laws relating to the collection, use, storage and disclosure of information about an identifiable individual, including but not limited to the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation, each as amended or superseded from time to time) applicable to the processing of Personal Information, and any other local, state, provincial, federal, or international laws relating to such activities.
(s) Profile(s)means the profile(s) of Customer employees and contractors, excluding Customer Users, that are tracked in an Account.
(t) Renewal Term has the meaning ascribed to it in Section 12.1.
(u) Renewal Term Fee has the meaning ascribed to it in Section 4.6.
(v) Services means the 做厙勛圖 做厙勛圖 as provided by 做厙勛圖 to the Customer and Customer Users hereunder, including ancillary services available in connection with the 做厙勛圖 做厙勛圖, such as Implementation Services, and Support Services.
(w) Support Services has the meaning ascribed in Section 6.2.
(x) Term means the Initial Term and all Renewal Terms, as applicable.
1.2 General Interpretation
(a) Number and Gender. In this Agreement, words importing the singular include the plural and vice versa, and words importing gender include all genders.
(b) Section Headings. The insertion of headings and the division of this Agreement into Sections are for convenience of reference only and will not affect the interpretation hereof. The words hereof, hereunder, hereto and similar expressions refer to this Agreement and not to any particular Section or other portion of this Agreement.
(c) Extended Meaning. The use of (i) the terms including or include mean including, without limitation or include, without limitation respectively; (ii) the term Services or the Services means Services, or any part thereof or the Services, or any part thereof, as applicable; and (iii) a definition applies to other forms of the word.
(d) Currency. All references to money amounts herein, unless otherwise specified on the Order Form, will be in United States Dollars ($USD).
(e) Generality. No specific representation, warranty or covenant contained herein will limit the generality or applicability of a more general representation, warranty or covenant contained herein. A breach of, or inaccuracy in, any representation, warranty or covenant will not be affected by the fact that any more general or less general representation, warranty or covenant was not also breached or inaccurate.
(f) Technical Terms. Technical terms used in this Agreement that are not defined in this Agreement may be defined in the Documentation or will have the generally accepted industry or technical meaning given to such terms.
ARTICLE 2
BRIDGIT PLATFORM
2.1 Rights of Access and Use. 做厙勛圖 hereby grants to Customer a non-exclusive, non-sublicensable and non-transferable right in the territories of Canada, the United States, Australia and New Zealand (collectively, the Territories): (i) access and use (and to permit Customer Users to access and use) the 做厙勛圖 做厙勛圖; and (ii) access and use, and permit Customer Users to access and use the Documentation made available by 做厙勛圖, all in accordance with the terms of this Agreement.
2.2 Restrictions. The Customer shall not, and shall ensure the Customer Users do not: (i) use 做厙勛圖 Software for purposes other than in relation to the Order Form; (ii) reverse engineer or decompile, modify, translate, disassemble or revise the 做厙勛圖 做厙勛圖 or any part thereof, or create adaption, combinations or derivative works thereof; (iii) make accessible, sub-license or transfer 做厙勛圖 Software to any third party; (iv) remove any proprietary notices, labels, or marks from the 做厙勛圖 or Documentation; (v) create any links to or frame or mirror of the 做厙勛圖 or any portion thereof; or (vi) use the 做厙勛圖 to create, collect, transmit, store, use or process any Customer Data that: (a) Customer does not have the lawful right to create, collect, transmit, store, use or process, or (b) violates any applicable laws (including Privacy Laws) or infringes, violates or otherwise misappropriates the Intellection Property Rights or other rights of any third party; and (vii) engage, directly or indirectly, in the research, development, manufacturing, marketing, distribution, sale, lease or licensing of any product, using in any way whatsoever any 做厙勛圖s Confidential Information or Intellectual Property Rights in the 做厙勛圖 Software or Services.
2.4 Reservation of Rights. 做厙勛圖 and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other Intellectual Property Rights), in and to the 做厙勛圖 and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the 做厙勛圖 and subject to all of the provisions of this Agreement. Customer shall keep the 做厙勛圖 and Documentation free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, 做厙勛圖 reserves all rights, title and interest in and to the 做厙勛圖 and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement, provided that Customer and its Customer Users shall retain all ownership, right, title and interest to the Customer Data.
2.5 Aggregated Data. Customer acknowledges and agrees that the 做厙勛圖 compiles, stores and uses aggregated data and system usage, analytics and diagnostic information to monitor and improve the 做厙勛圖 and for the creation of new products. All data collected, used, and disclosed by 做厙勛圖 will be in aggregate, anonymized and/or de-identified form only and will not identify Customer, Customer Users, Customer Data, Personal Information, or any third parties utilizing the 做厙勛圖.
ARTICLE 3
ACCOUNT ACTIVATION
3.1 Account. Customer is required to open an account with 做厙勛圖 (an Account) in order to use the 做厙勛圖 and track Profiles. During registration, a Customer User will be asked to provide Personal Information in order to create an Account on behalf of Customer. Customer shall ensure that such Account activation information is accurate and complete and that such information remains current throughout the Term. Customer is fully responsible for all activity that occurs in Customers Account, including for any actions taken by Customer Users.
3.2 Passwords. Customer is responsible for keeping all Account passwords secure. 做厙勛圖 will not be liable for any loss or damage caused by or arising from a failure by Customer or Customer Users to maintain the security of the Customers Account and password.
3.3 Customer and Customer Users. Customer is also responsible for all activity in the Account and for Customer Data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with Customers Account by its Customer Users. Customer is responsible for its Customer Users compliance with this Agreement. Customer shall: (a) use commercially reasonable efforts to prevent unauthorized access to, or use of, the 做厙勛圖, and notify 做厙勛圖 promptly of any such unauthorized access or use; and (b) use the 做厙勛圖 only in accordance with the Documentation and applicable laws and government regulations.
ARTICLE 4
FEES
4.1 Initial Term Fees. Customer shall pay 做厙勛圖 the fees stipulated in the Order Form for the Services during the Initial Term (the Initial Term Fee).
4.2 Invoicing and Payment. 做厙勛圖 shall invoice the Customer in advance for the Fees and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with 做厙勛圖.
4.3 Overdue Payments. Any payment not within thirty (30) days of receipt of invoice from 做厙勛圖 may accrue, at 做厙勛圖s discretion, late charges at the rate of one and a half percent (1.5%) per month on any past due amount (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Customer will also be responsible for any costs incurred by 做厙勛圖 in collecting any past due amount.
4.4 Taxes. The Fee does not include applicable taxes, levies, duties or similar governmental assessments of any nature, including sales, use, excise, goods and services, value added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, Taxes). Customer is responsible for paying all Taxes associated with its purchases hereunder. For greater certainty, 做厙勛圖 is solely responsible for taxes assessable based against its income, property and employees.
4.5 Profile Usage. If, during the Term, the number of Profiles in an Account exceeds more than fifteen percent (15%) of the actual Profiles paid for by Customer in the Order Form, 做厙勛圖 reserves the right to immediately charge Customer the pro-rated subscription fees applicable for such additional Profiles.
4.6 Fee Increase. 做厙勛圖 reserves the right to increase the Fees, to be effective on the next Renewal Term (the Renewal Term Fee) and shall provide written notice to Customer at least thirty (30) days in advance of any such Fee increase.
ARTICLE 5
CUSTOMER RESPONSIBILITIES
5.1 Equipment. Customer is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Customer to access and use the 做厙勛圖 and for all expenses relating thereto. Customer agrees to access and use, and shall ensure that all Customer Users access and use, the 做厙勛圖 in accordance with any and all operating instructions or procedures that may be issued by 做厙勛圖 from time to time.
5.2 Cooperation. Customer will provide 做厙勛圖 all reasonable information, assistance, documentation, cooperation and updates as requested or required by 做厙勛圖 to perform the Services. 做厙勛圖 will not be liable for any failure to perform hereunder caused by the Customers failure to provide adequate, appropriate or correct information, assistance, documentation, cooperation or updates. Customer agrees to press mentions and authorizes 做厙勛圖 to include the Customers name and logo on 做厙勛圖s website and/or other marketing collateral.
5.3 Users. Customer shall: (a) use commercially reasonable efforts to prevent unauthorized access to, or use of, the 做厙勛圖, and notify 做厙勛圖 promptly of any such unauthorized access or use; and (b) use the Service only in accordance with these Terms of Service, the Documentation and applicable laws and government regulations.
5.4 Feedback. Customer may provide reasonable feedback to 做厙勛圖 including, but not limited to, suitability, problem reports, suggestions and other information with respect to the 做厙勛圖 (Feedback). Customer hereby grants to 做厙勛圖 a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the 做厙勛圖, Documentation and any other 做厙勛圖 products or services, or for any other purposes, any Feedback provided by Customer or its Customer Users.
ARTICLE 6
SERVICES AND SERVICE LEVELS
6.1 Implementation Services. 做厙勛圖 will provide implementation assistance with respect to the 做厙勛圖 做厙勛圖 as further outlined in the Order Form (the Implementation Services) which shall be provided on a one-time basis prior to any training provided by 做厙勛圖 to Customer. Any additional implementation assistance or set-up, and any customization requested by Customer may be provided by 做厙勛圖 to Customer in its sole discretion, the terms and costs of which shall be mutually agreed upon by the parties and incorporated into the Order Form.
6.2 Support Services. 做厙勛圖 will provide support and maintenance services with respect to the 做厙勛圖 做厙勛圖 (the Support Services) in accordance with the terms and service levels set out in the attached Schedule A. Support Services are included in the Fees payable by the Customer to 做厙勛圖.
6.3 Enhancements and New Features. From time to time, 做厙勛圖 may make Enhancements to the 做厙勛圖 做厙勛圖 at its sole discretion or add New Features to the 做厙勛圖 做厙勛圖 upon the payment of additional fees by Customer. Customer will be given the option to upgrade and pay an additional fee for New Features.
ARTICLE 7
CONFIDENTIALITY
7.1 Obligation of Confidentiality. Each party agrees: (i) to take all measures necessary to keep the Confidential Information of the other party confidential; and (ii) to not release, disclose, divulge or otherwise make available, directly or indirectly, any of the Confidential Information of the other party to any third person except:
(a) employees of the receiving party who need to use the Confidential Information for the purposes of this Agreement;
(b) necessary subcontractors, representatives or legal and professional advisors of the receiving party; or
(c) to the extent required pursuant to an order of a court of competent jurisdiction or as otherwise required by law, provided that the disclosing party is notified forthwith of any such requirement, and provided that reasonable efforts are made by the receiving party to maintain the confidentiality of the Confidential Information in any required disclosure, and provided that the receiving party shall, if possible, provide the disclosing party an opportunity to object to the disclosure.
7.2 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).
7.3 Right to Injunctive Relief. Each Party acknowledges that monetary damages may not be a sufficient remedy for a breach of its obligations and that the other Party will be entitled, without waiving any of its other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
ARTICLE 8
CUSTOMER DATA AND PERSONAL INFORMATION
8.1 Customer Data. As between 做厙勛圖 and Customer, Customer exclusively owns and shall at all times retain all ownership, right, title and interest in and to the Customer Data. 做厙勛圖 does not acquire any rights, title or interest whatsoever, express or implied, in any of the Customer Data. Customer hereby authorizes 做厙勛圖 to use Customer Data as required to provide the Services in accordance with the terms hereof and in accordance with the applicable Privacy Laws.
8.2 Technical and Organizational Safeguards. In connection with the provision of the Services, 做厙勛圖 will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the 做厙勛圖 and Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by 做厙勛圖 personnel except (a) to provide the 做厙勛圖 and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, (c) as expressly permitted in writing by Customer, or (d) as allowed under applicable Privacy Laws. 做厙勛圖 shall, in connection with the provision of the 做厙勛圖, comply with Privacy Laws, as well as 做厙勛圖s Privacy Policy.
8.3 Customer Data Portability and Deletion. Upon request by Customer made during the Term or within thirty (30) days after the effective date of termination of this Agreement, 做厙勛圖 will delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control as provided in the Documentation, unless legally prohibited.
8.4 Customers Obligations Regarding Personal Information. Customers instructions to 做厙勛圖 for the processing of Personal Information shall comply with Privacy Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Customer acquired the Personal Information. Customer hereby represents and warrants to, and covenants with 做厙勛圖 that Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable Privacy Laws, to enable 做厙勛圖 to provide the 做厙勛圖, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to 做厙勛圖 and to or from all applicable third parties.
8.5 做厙勛圖s Processing of Personal Information. 做厙勛圖 shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. 做厙勛圖 shall only process Personal Information on behalf of and in accordance with applicable Privacy Laws for the following purposes: (a) processing in accordance with the Agreement; (b) processing initiated by Customers Users or customers in their use of the 做厙勛圖; and (c) processing to comply with other documented reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement and applicable Privacy Laws. 做厙勛圖 shall ensure that its personnel engaged in the processing of Personal Information: (x) are informed of the confidential nature of the Personal Information, (y) have received appropriate training on their responsibilities, and (z) are under contractual or statutory obligations to maintain the confidentiality of Customer Data. 做厙勛圖 shall take commercially reasonable steps to ensure the reliability of any 做厙勛圖 personnel engaged in the Processing of Personal Information.
8.6 Messaging. If using the messaging functionality, Customer represents and warrants that it has and will continue to comply with all Privacy Laws applicable to email, SMS, or text campaigns, that Customer has obtained all appropriate and required consents to send such messages, and that Customers deployment of any such email, SMS or campaigns comply with all applicable Privacy Laws. 做厙勛圖 shall have no responsibility or liability to Customer relating to Customers compliance with Privacy Laws applicable to any such messaging, nor will Bridit be responsible for any type of record creation or maintenance of records in relation to information sent by Customer to its Customers Users through use of the messaging functionality. 做厙勛圖 will provide opt-out functionality and link our privacy policy in all messages sent to Customers Users.
ARTICLE 9
LIMITED WARRANTIES AND DISCLAIMERS
9.1 做厙勛圖s 做厙勛圖 Warranty. 做厙勛圖 hereby represents and warrants to Customer that: (i) During the Term, the 做厙勛圖 will perform materially in accordance with the Documentation; and (iii) the 做厙勛圖 will not contain any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
9.2 Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE PLATFORM IS PROVIDED AS IS AND AS AVAILABLE AND BRIDGIT MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE PLATFORM; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CUSTOMER DATA TRANSMITTED TO OR FROM BRIDGIT VIA THE PLATFORM. BRIDGIT DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL MEET ANY OR ALL OF CUSTOMERS PARTICULAR REQUIREMENTS, THAT THE PLATFORM WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE PLATFORM CAN BE FOUND IN ORDER TO BE CORRECTED.
ARTICLE 10
LIMITATION OF LIABILITY
10.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 10.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).
10.2 Limitation of Liability. SUBJECT TO SECTION 10.3 HEREOF, IN NO EVENT SHALL EITHER PARTYS MAXIMUM, CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.
10.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTYS LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTYS BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS , (III) DAMAGES ARISING FROM INFRINGEMENT CLAIMS (AS DEFINED HEREIN); (IV) ANY CLAIMS FOR NON-PAYMENT, (V) GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.
ARTICLE 11
INDEMNIFICATION
11.1 Indemnification by 做厙勛圖. 做厙勛圖 agrees to defend, indemnify and hold harmless the Customer against any claim, suit, demand or action (a Claim) demands, suits or proceedings made or brought against Customer by a third party alleging that Customers use or the Customer Users use of the 做厙勛圖 as contemplated hereunder infringes the intellectual property rights of, or has otherwise harmed, a third party (each, an Infringement Claim) ; provided, however, that: Customer will (i) provide 做厙勛圖 with prompt written notice of such Claim; (ii) give 做厙勛圖 sole control of the defense and settlement of the Infringement Claim (provided that 做厙勛圖 may not settle or defend any Infringement Claim unless it conditionally releases Customer of all liability); and (ii) provide to 做厙勛圖, at 做厙勛圖s cost, all reasonable assistance and information. The foregoing will not apply to the extent that the Infringement Claim arises from Customers use of the 做厙勛圖 in a manner that was not intended or not in accordance with this Agreement.
11.2 Other Remedies. If (a) 做厙勛圖 becomes aware of an actual or potential Infringement Claim, or (b) Customer provides 做厙勛圖 with notice of an actual or potential Infringement Claim, 做厙勛圖 may (or in the case of an injunction against Customer, shall), at 做厙勛圖s sole option and determination: (i) procure for the Customer the right to continue using the 做厙勛圖; (ii) replace or modify the infringing component so that it no longer infringes upon such Intellectual Property Rights; or (iii) where (i) or (ii) are not practical in the sole discretion of 做厙勛圖, terminate the rights granted to Customer herein to access and use the 做厙勛圖. If Customer is prevented from using the 做厙勛圖 or terminated pursuant to this Section 11.2, then 做厙勛圖 shall provide Customer with a pro rata refund of any Fees already paid by Customer for those periods during which it does not have access to 做厙勛圖.
11.3 Exclusive Remedy. Sections 10.3, 11.1 and 11.2 set forth the exclusive and entire remedy of Customer against 做厙勛圖 with respect to the indemnification of any third-party Claims.
11.4 Indemnification by Customer. Customer agrees to defend, indemnify and hold harmless 做厙勛圖, its employees, officers, directors, shareholders, agents and affiliates from and against any Claims, demands, suits or proceedings made or brought against 做厙勛圖 by a third party (a) alleging that Customers or the Customer Users use of the 做厙勛圖 as contemplated hereunder infringes the intellectual property rights of, or has otherwise harmed, a third party, but only to the extent the Claim, demand, suit, or proceeding arises from Customers use of the 做厙勛圖 in a manner that was not intended or not in accordance with this Agreement; (b) based on a breach of any Privacy Laws or a breach of this Agreement by Customer or its employees, contractors, or agents; or (c) caused by any negligent act or omission of Customer or its employees, contractors, or agents (each a Customer Indemnified Claim); provided, however, that 做厙勛圖 will (i) provide Customer with prompt written notice of the Customer Indemnified Claim; (ii) give Customer sole control of the defense and settlement of the Customer Indemnified Claim (provided that Customer may not settle or defend any Customer Indemnified Claim unless it conditionally releases 做厙勛圖 of all liability); and (iii) provides to Customer, at Customers cost, all reasonable assistance and information.
ARTICLE 12
TERM AND TERMINATION
12.1 Term, Renewal. This Agreement will be effective on the date of the initial Order Form and will continue for the period outlined in the Order Form (the Initial Term), or until otherwise terminated by either part as provided below. Unless otherwise agreed upon in the applicable Order Form, an Order Form shall automatically renew for additional periods of one (1) year (each, a Renewal Term) at the Renewal Term Fee, unless Customer gives Company written notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term.
12.2 Termination for Cause. Either party may terminate this Agreement for cause as follows: (i) upon fifteen (15) days written notice to the other party of a material breach if such breach remains uncured or the breaching party has failed to take diligent steps to commence cure of the breach within five (5) days following written notice from the non-breaching party, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.3 Payment on Termination. Customer shall be responsible to pay the Fee up to the effective date of termination. If this Agreement is terminated mid-month, the Fee shall be prorated. . In no event will termination relieve Customer of its obligation to pay any Fees payable to 做厙勛圖 for the period prior to the effective date of termination. Customer shall pay any and all other amounts that may be owing to 做厙勛圖 under this Agreement forthwith on receipt of final invoice from 做厙勛圖.
12.4 Effects of Termination or Expiration. In the event of termination or expiration of this Agreement, on the termination date or expiration date, as applicable, (i) the rights granted to Customer and the provision of the Services will terminate and expire immediately; (ii) Customer will immediately cease to access the 做厙勛圖 and shall notify Customer Users to cease to access the 做厙勛圖 under the terms of this Agreement; and (iii) Customer will immediately return or destroy, at 做厙勛圖s sole discretion, all Documentation and any other materials containing 做厙勛圖s Confidential Information and, at the request of 做厙勛圖, confirm in writing that such information has been returned or destroyed.
12.5 Survival. Any provision of this Agreement which by its nature would survive the termination or expiration of this Agreement, shall survive termination or expiry of this Agreement and will remain in full force and effect thereafter.
ARTICLE 13
MISCELLANEOUS
13.1 Force Majeure. Neither party will be deemed to be in default of any provision of this Agreement (other than Customers obligation to pay amounts due to 做厙勛圖 hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including, but not limited to, fire, flood, other natural disasters, war, labour difficulties, interruption of transit and power telecommunication outages, accident, explosion, civil commotion and acts of any governmental authority; provided, however, that the party so affected will give prompt notice thereof to the other party.
13.2 Governing Law. This Agreement and the rights and obligations of the Parties under this Agreement, for Canadian based Customers are governed by, and are to be construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario, without regard to its conflict of law principles. For USA based Customers it shall be governed by, and are to be construed and interpreted in accordance with the laws of the State of Delaware and the federal laws of USA applicable in the State of Delaware, without regard to its conflict of law principles. The Parties agree that the courts of such jurisdiction constitute a convenient forum for any litigation and both parties attorn and submit to the non-exclusive jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded and does not apply to this Agreement
13.3 Dispute Resolution.
(a) Negotiation. The parties will negotiate in good faith and use reasonable efforts to settle any dispute, controversy or claim arising from or related to this Agreement. If the Parties fail to reach a mutually satisfactory resolution within thirty (30) days from the date of notice given of such dispute, then the dispute shall be subject to arbitration in accordance with the Arbitration Act (Ontario) for Canadian based Customers and the arbitration laws of Delaware for US based Customers..
(b) Interim Relief. Notwithstanding anything herein to the contrary, nothing in this Section 13.3 will preclude either party from seeking interim or provisional relief in the courts in the jurisdiction designated in Section 13.2, including a temporary restraining order, preliminary injunction or other interim equitable relief. This Section 13.3(b) will be specifically enforceable.
13.4 Non-Assignment. The Customer may not assign this Agreement or any rights or obligations hereunder, in whole or in part, without the prior written consent of 做厙勛圖 and any attempt to assign this Agreement without such consent will be deemed null and void. This Agreement will enure to the benefit of and be enforceable by and against the parties and their successors and permitted assigns, and if applicable, Customers personal representative or estate trustee.
13.5 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between 做厙勛圖 and Customer with respect to the subject matter hereof, superseding any other agreements or discussions, oral or written. In the event of a contradiction between the body of this Agreement and the Order Form, the provisions contained in the Order Form will prevail. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party.
13.6 Independent Contractors. The parties hereto are and will remain independent contractors. Nothing herein will be deemed to establish a partnership, joint venture or agency relationship between the parties. Neither party will have the right to obligate or bind the other party in any manner to any third party.
13.7 Severability. The invalidity or unenforceability of any provision hereof will in no way affect the validity or enforceability of any other provision. Any provision declared invalid or unenforceable by a court of competent jurisdiction will be deemed to be automatically amended and replaced by a valid and enforceable provision that accomplishes as far as possible the purpose and intent of such original provision, and the remaining terms and conditions of this Agreement will remain in full force and effect.
13.8 Waiver. Any term or condition of this Agreement may be waived at any time by the party that is entitled to the benefit thereof solely with respect to such party, but no such waiver will be effective unless set forth in a written instrument duly executed by or on behalf of the party waiving such term or condition. The waiver by either party of any right hereunder or of the failure to perform or of a breach by the other party will not be deemed a waiver of any other right hereunder or of any other breach or failure by such other party whether of a similar nature or otherwise.
13.9 Notice. Any notice or other communication required or permitted hereunder will be in writing and shall be sufficiently given if delivered by hand or sent by registered mail, courier, email or facsimile addressed to the other party to such other person as designated by a party or address as the parties may from time-to-time designate in writing delivered pursuant to this notice provision. Any such notices, requests, demands or other communications shall be deemed received and effective: (i) upon delivery, if delivered personally; (ii) on the date of receipt of facsimile, mail, email or courier, where a confirmation of receipt is provided for such facsimile, mail, email or courier; or (iii) on the 5th Business Day after demonstrable proof of sending by facsimile, mail, email or courier, where confirmation of receipt is not provided for such facsimile, mail, email or courier. Legal notices or other communication required hereunder sent by email to 做厙勛圖 shall be sent to: legal@gobridgit.com.
SCHEDULE A
SERVICE LEVELS
UPTIME
做厙勛圖 will use commercially reasonable efforts to achieve a Service Availability (as defined below) of at least 99% during each calendar month. If 做厙勛圖 fails to meet such service commitment it will report the remedial steps taken to address such service commitment failure. . Service Availability means the number of minutes in a month that the key components of the 做厙勛圖 are operational as a percentage of the total number of minutes in such month, excluding downtime resulting from (a) scheduled maintenance, (b) events of force majeure, (c) malicious attacks on the 做厙勛圖, (d) issues associated with Customers network or equipment, or (e) inability to deliver the 做厙勛圖 because of acts or omissions of Customer. 做厙勛圖 reserves the right to take the 做厙勛圖 offline for scheduled maintenance for which Customer has been provided reasonable notice and 做厙勛圖 reserves the right to change its maintenance window upon prior notice to Customer. Notwithstanding the foregoing, full functionality of the 做厙勛圖 is only guaranteed in Canada, the United States, the United Kingdom, Australia and New Zealand (collectively, the Territories). Any use of the 做厙勛圖 outside of the Territories is subject to availability.
SEVERITY DEFINITIONS
做厙勛圖 will address reported incidents in accordance with the following provisions:
Level 1 Severity is any issue that directly affects the Customers ability (or a Customer User) to use the 做厙勛圖 做厙勛圖.
Level 2 Severity is any issue that interrupts the normal course of business of a Customer (or a Customer User) but does not directly impact the ability to use the 做厙勛圖 做厙勛圖.
Level 3 Severity is any issue that does not impact business processes or the ability to use the 做厙勛圖 做厙勛圖.
RESOLUTION TIMES
* Resolution refers to the ability to circumvent the problem. This may be done by fixing a defect and releasing new code or by online/offline workarounds until the problem is fixed.
COMMUNICATION
All issues will be reported via 做厙勛圖s Support Centre. Account login credentials will be provided to Customer upon execution of an Order Form.