The Licensing Agreement is between the entity you represent, or, if you do not designate an entity in connection with a licensing purchase or renewal, you individual (“you” or “your”) and Thentia Canada Inc.It consists of the general terms and conditions under which Thentia, or any Thentia Affiliate will provide professional services, software services, support services and other related services. It consists of the terms below, as well as the payment terms in your applicable Service Schedule, SLAs, and the Statement of Work (“SOW”) for your License or renewal (together, the “Agreement”).
1.Provision of Services
We shall provide you Professional Services detailed in the SOW.Each SOW will be subject to the terms and conditions of this Agreement and the professional services terms set out below.Subject to the terms and conditions below, we will provide to you the Software Services and other Services stated in the Service Schedules.
2.Restrictions on Access and Use
You will not provide, disclose, sublicense, rent, lease, or otherwise permit any person to access, use, read, disseminate, transmit, download, or reproduce the Software or Software Documentation. You will not (or attempt to) adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Software in any manner or to any extent whatsoever, whether in whole or in part. You will not, to the maximum extent permitted by applicable law for the purpose of permitting interoperability with Client systems, disassemble, decompile, reverse engineer, or otherwise in any manner deconstruct all or any part of the Software. You will not be permitted to use the Software to act as a “service bureau” or in a time-sharing, application service provider or other similar model to provide the benefit of the use of the Software to any Person except as expressly permitted. You will not copy the Software or disclose the results of any software benchmark test without our prior written consent. You will not remove, obscure, or deface any proprietary legend relating to our intellectual property rights, on or from any tangible embodiment of Software Documentation or other materials or intellectual property. You will not (or attempt to) bypass or breach any security device or protection used by the Software or access or use the Software other than by an Authorized User through the use of his or her own then-valid access credentials. You will not have any right to access or obtain a copy of the object code or source code to the Software.
3.Your Responsibilities
You will be responsible for Authorized Users’ compliance with the Agreement and for all access to and use of the Software Services directly or indirectly by or through your Systems or your Authorized Users’ login credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. You will be responsible for all information, instructions, and materials provided by or on behalf of you or any Authorized User in connection with the Software Services or Professional Services. You will be responsible for the accuracy, quality and legality of your Data and the means by which you acquired your Data.You will be responsible for protecting and preserving the confidentiality of your (including its Authorized Users’) login credentials to the Software, preventing unauthorized access to or use of the Software, and notifying us promptly of any confirmed or suspected unauthorized access or use; and, we shall have no liability for any loss or damage suffered by you as a result of your or any Authorized User’s failure to adequately safeguard any login credentials. You will use the Software only in accordance with the Software Documentation and applicable laws and government regulations and comply with terms of service of Third-Party Products with which you use Services or your Data including any terms and conditions relating to payment processors. You will reasonably assist, cooperate, and facilitate the provision of any services to be provided by us under the Agreement, including the prompt provision of information and assistance that we may reasonably request. You will provide us with access to your Systems to the extent reasonably required by us to perform our obligations subject to your applicable security policies. You will be responsible for your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by you or through the use of third-party services.You will be responsible for implementing and maintaining security conforming to good industry practice including to protect the security of your Systems, Client Data and any systems or software not provided and managed by us, such as any Third-Party Products; and your security safeguards will include precautions against viruses, worms, trojan horses and other items of a disabling or destructive nature.You will provide us with any assistance, access, data, information, and content to the extent requested and reasonably required by us in order to perform our obligations, and if you fail to provide required assistance, access, data, information or content, we shall be excused from performance hereunder to the extent we are unable to perform as a result of your failure. You will be responsible for providing, and hereby authorize us to display in accordance with your guidelines provided to us, your names and logos and other Marks on the Software in connection with the provision of the Software Services and Professional Services.
4.Monitoring Use
We shall have the right to monitor your use of the Software Services for the purpose of verifying your compliance with this Agreement, including to verify the fees payable in respect of your use of the Software Services.
5.Suspension of Software Services
Without limiting our other rights, we may, at any time, suspend the Software Services, or suspend access to or use of any Authorized User account, in the event that we determine that such suspension is necessary or prudent, whether for security, emergency, legal, or other such reasons, including if an Authorized User’s account or activity is known or reasonably suspected by us to be (1) disrupting or causing harm to ours or another Person’s computers, systems, or infrastructure or (2) is in violation of Your Responsibilities, applicable Law, or the Software Documentation; provided that, we shall: (i) use commercially reasonable efforts to notify you of any such suspension, either before or after such suspension, and (ii) promptly reinstate the applicable Services upon resolution to our reasonable satisfaction of the circumstances giving rise to the suspension.
6.Services and Data Location
The Services will be provided, and your Data stored and processed, at the locations specified in the applicable Service Schedule.
7.Third-Party Products
You acknowledge that, depending on the Software configuration and deployment option selected by you, the use of the Software may require the use of certain third-party products (the “Third-Party Products”).You agree that we have no responsibility or obligation to supply (except as may be expressly specified in the Software Features or the Agreement), or any liability whatsoever concerning, the Third-Party Products and that you shall be solely responsible for sourcing, acquiring, and licensing such Third-Party Products directly from the applicable Third-Party Products vendors.
8.Commercial Electronic Messages
If we provide any Services to you that involve the planning, managing or delivery of commercial electronic messages to recipients, or the installation of computer programs on another person’s computer system, you will be responsible to comply with applicable Laws (including Canada’s Anti-Spam Legislation (CASL) as it may be amended from time to time) and we will be responsible to adhere to your instructions concerning such matters as specified and documented in the applicable Service Schedule.
9.Fees
All fees for the Services (other than Professional Services) to be paid by you to us and associated payment terms will be set out in the applicable Service Schedule.All fees are non-refundable except as expressly stated.All fees for any Professional Services and expenses to be charged and paid by you to us and associated payment terms will be as described below.We will issue an invoice for all Services as specified in the Service Schedule.Unless otherwise set out in the Service Schedule: (1) You will pay invoices within thirty (30) days of receipt; and (2) invoices will be sent and paid electronically.All invoiced amounts will be paid without set off or deduction.All fees are exclusive of taxes.You will pay all Sales Taxes.We will invoice you for Sales Taxes at the time the associated fees are invoiced.We reserve the right to charge interest at an annual rate of 12%, compounded monthly (effective annual rate 12.68%), or the highest rate allowed by applicable law, whichever is less, after a payment has been overdue for at least thirty (30) days.Without limiting its other rights and remedies, we may suspend performance upon notice to you if you have failed to pay an amount payable under this Agreement (or the applicable Service Schedule or SOW) when due, such suspension continuing until all such amounts are paid.All references to currency shall be to Canadian dollars unless otherwise set out in the applicable Service Schedule or SOW.
10.Our Warranties
We warrant that the Software will conform in all material respects with the Software Features during the Service Term; and it will in the performance of the Services through which Software is made available use industry recognized tools designed to detect computer viruses and other malicious codes.
11.Remedies
If our provision of any Services fails to conform to the warranties made above, we will, at your request, promptly make all necessary corrections or re-perform the Services at no additional cost to you.These remedies are your sole and exclusive remedies for a breach of the above warranties.
12.Service Levels
The performance of Services may be subject to service levels and other specific standards of performance as specified in the applicable Service Schedule.If Services are subject to service levels, we will monitor and measure our achievement of the service levels and report the results to you in the frequency and format agreed by us in the applicable Service Schedule.
13.Mutual Warranties
We warrant to each other that we each have the full authority, and all rights, licenses, approvals, consents, and authorizations necessary to enter into and perform the Agreement.We warrant to each other that we each will, at our own cost, obtain all necessary regulatory approvals, licenses and permits applicable to our respective businesses that are necessary in the performance of each Agreement, confirm that we are aware of the Laws applicable to them, and agree that we will comply (and have policies, procedures and controls in place designed to comply) with all Laws applicable to us both, including all applicable Financial Criminal Laws and Privacy Laws.We warrant to each other that this Agreement is, and each Service Schedule and SOW executed after the Effective Date shall be, executed by its duly authorized representatives.
14.Disclaimer
To the maximum extent permitted under applicable law, except as set forth in this agreement or any service schedule or any sow, no warranty of any kind, either express or implied, is made by us, and we and our subcontractors expressly disclaim any and all other warranties and conditions, express or implied, including the implied warranties and conditions of merchantability, non-infringement, and fitness for a particular purpose.We do not warrant that the functionality of the software or any services provided by us will meet client’s specific requirements or will achieve the results desired by client or that the operation of the software or any services will be uninterrupted or error-free or free from unauthorized intrusions.Without limiting the generality of the foregoing, you shall be exclusively responsible for determining whether the functions in the software or services will meet your requirements or will achieve the results desired by you, and for ensuring the accuracy or quality of any data input to the software and services.
15.Intellectual Property and Ownership Rights
We (or our third-party licensors) retain all ownership rights (including all intellectual property rights) in and to the Software and Services (and all systems, software and technology used to provide and perform the Services), and all improvements, enhancements, and changes.To the extent necessary and for the sole purpose of your receipt of and access to and use of the Services (and subject to the terms and conditions of the Agreement), we grant to you during the Service Term of the applicable Service Schedule, a non-exclusive and non-transferable license to access and use the Software (and, where required, related systems, software and technology used to provide and perform the Services).If under applicable Law, you are deemed to own any intellectual property rights in or to any modifications or improvements to Software or other of our intellectual property, you agree you will, and hereby do, immediately and irrevocably assign and transfer to us all intellectual property rights in or to such items and waive (or will cause to be waived) all moral (or similar) rights in favour of us.You will cause to be executed all such assignments and waivers with any third-party (including your personnel) as are required to comply with these terms.Your Data and Anonymized Data, and all intellectual property rights in and to your Data and Anonymized Data, is and will remain your sole and exclusive property.
16.Client Marks and Materials
We may use any Mark and Materials to the extent necessary to provide the Services and Professional Services (including for the purposes of configuring the Software with Client branding).We will comply with any written requirements or specifications you provide in advance and to which you agree for that use.We will not: (1) acquire any title to your Marks through their use; or (2) make any unlicensed use of your Mark or file any application in any jurisdiction for the registration of any Mark.Thentia’s use of your Marks is to accrue to the benefit of you.Any artwork created by us containing any Mark belonging to you must be approved by you before it may be used for Services.
17.Preservation of Rights
Except as expressly stated in this Agreement (including a Service Schedule or SOW), neither party transfers to the other party any intellectual property or other property under the Agreement.Either party is free to use in its business any skills, experience, ideas, concepts, know-how, or techniques that it acquires in performing or receiving the Services, so long as in doing so that party does not infringe the other’s ownership rights or breach its obligations for Confidential Information under the Agreement. Neither party will remove or obscure any copyright, patent, trade secret or other proprietary rights notice the other places on Software or other intellectual property or materials in which it has all ownership rights.
18.Client Feedback
We are free to use without obligation irrevocably and perpetually to you any suggestion, enhancement request, recommendation, correction, or other feedback provided by you or Authorized Users relating to Software or Services or Professional Services.
19.Confidentiality Obligations
Each party will use Confidential Information of the other party solely for the purpose for which it was provided (which in the case of Thentia includes to provide the Services and Professional Services and perform its obligations), protect the Confidential Information of the other party with at least the same degree of care as it uses in protecting its own Confidential Information (but in any event, no less than a reasonable standard of care), and retain it for the time period required for that purpose or as agreed to between the parties, except that we shall have a perpetual and irrevocable right to use Anonymized Data to provide, support, maintain and improve the Services.
Each party may only disclose Confidential Information of the other party (1) with the prior written consent of that other party; (2) to the extent it is legally compelled to do; (3) to its directors, officers, employees, independent contractors, professional advisers (including internal and external auditors) and governmental and regulatory authorities, and in the case of Thentia to its affiliates and subcontractors; and in each case to the extent they have a need to know, are informed of the confidential nature of the information, and agree (for a third-party through a written agreement) or are otherwise bound to act in accordance with the obligations set out here (except that in the case of disclosure to governmental and regulatory authorities such limitations may not apply).You acknowledge that the Software and your Data and your other Confidential Information are hosted, stored, and processed on servers located at our subcontractor specified in the applicable Service Schedule, and you consent to this.
A party may disclose Confidential Information of the other party to comply with legal or regulatory requirements on the condition that, to the extent not legally prohibited: (1) it first notifies the other of the requirements; (2) it permits the other a reasonable opportunity to get a protective order, injunction, or other appropriate remedy preventing that disclosure; (3) it gives the other a copy of the requirements and of the Confidential Information to be disclosed; (4) it discloses only the Confidential Information it is required to disclose; and (5) the other does not get a protective order, injunction, or other appropriate remedy preventing that disclosure.
In performing the Services, we shall use commercially reasonable technical, organizational, and physical security measures to safeguard your Data and will notify you promptly in the event of any loss or theft of, or unauthorized access to or use or disclosure of, your Data of which it becomes aware.In the event of a Security Breach, we will: (1) notify you on a timely basis by telephone and in writing at the address provided for such purpose in the applicable Service Schedule or otherwise designated by you in writing; (2) reasonably assist you in the management of any consequences arising from it; (3) take reasonable steps intended to mitigate harm resulting from it: and (4) take appropriate steps designed to prevent its recurrence and notify you of those steps.
You understand that the technical processing and transmission of data is fundamentally necessary to use of the Software Services.You are responsible for securing DSL, cable, or another high-speed Internet connection and up to date “browser” software in order to utilize the Software Services.You expressly consent to our interception and storage of data (including your Data) as needed to provide the Services hereunder, and you acknowledge and understand that your Data will be transmitted over the Internet, and over various networks, only part of which may be controlled by us.Client further acknowledges and understands that such data transmitted in the use of the Software Services may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Without limiting our applicable obligations here, we are not responsible for any of your Data which is delayed, lost, altered, intercepted, or stored during the transmission of any data whatsoever across networks not controlled by us, including, but not limited to, the Internet and your local network.
On the termination of the Agreement or otherwise at the other party’s written request, a party will promptly return or, as the other party may direct, destroy all copies of the other party’s Confidential Information it then has and certify that it has taken this step, except copies required by Law or internal policies implementing such Law.In destroying Confidential Information, including in electronic devices or media (such as hard drives, USB mass storage, tape, optical storage CD, DVD, etc.), the parties will use a secure and reliable process so that following destruction, the Confidential Information is not recoverable, and the electronic device or media cannot be read by any commercially available tool.If requested by the disclosing party, the receiving party will produce a written certification of destruction from a reputable external vendor certifying secure destruction of the Confidential Information.
We may use your name and any Mark belonging to you on our website and in marketing and advertising materials.
20.Liability
Exclusion of Liability.Except for any infringement or misappropriation by one party of the other party’s intellectual property rights, neither party will be liable to the other party for any special, indirect, punitive, or consequential damages, including with respect to loss of goodwill, reputational injury, loss of revenue or profits or loss of opportunity, failure to realize expected savings, or any other consequential economic loss.
Limitation.The total aggregate liability of each party to the other party for all claims arising out of or relating to this Agreement shall not exceed an amount (“Damage Cap”) that is equal to: (1) in the case of claims related to the Services, the fees paid by you under the applicable Service Schedule in the twelve (12) months preceding the date of the claim for which damages are sought (or if the there are multiple claims, the date of the last such claim); and (2) in the case of claims related to Professional Services, the total fees paid by you under the applicable Statement of Work or Change Order.The Damage Cap in either case shall not apply to exclude or limit liability: (i) of either party that cannot be excluded or limited under applicable Law; (ii) of either party arising as a result of the willful misconduct or fraud of that party or persons for whom it is responsible hereunder; (iii) of either party as a result of any death or bodily injury to the extent resulting from any negligent act or omission of that party or persons for whom it is responsible hereunder; (iv) of either party arising as a consequence of any infringement or misappropriation by that party of the other party’s intellectual property rights; (v) your indemnification obligations noted here; or (vi) arising as a result of your failure to pay fees in accordance with the terms hereof.
Limitations Apply.The limitations and exclusions identified in these terms will apply irrespective of the nature of the cause of action, demand, or claim, including misrepresentation, breach of contract, negligence, tort or any other legal theory, and will survive a fundamental breach or breaches and/or failure of essential purpose of this Agreement or of any remedy contained herein.
Infringement Indemnity.We will, at our sole expense, defend your Indemnitees against any claim by a third-party that the Software, Software Documentation or Deliverable infringes any patent, copyright, or other intellectual property right (“Infringement Claim”) and will, subject to the terms identified here, indemnify Client against all resulting costs, direct damages, and other liabilities (including reasonable legal fees) that are suffered or incurred by the Client Indemnitees.If the Software Service, Software Documentation or Deliverable becomes (or we reasonably believe may become) the subject of any Infringement Claim, we will at no additional cost to you, and at our discretion (i) obtain the right for you to continue using it; (ii) replace it with an equivalent or better product; or (iii) modify it to make it non-infringing without materially reducing its functionality.If we determines that none of the foregoing alternatives are reasonably practicable or commercially reasonable, we may require you to stop using it, in which case we will, as your sole and exclusive remedy, refund to you either (i) any prepaid and unused fees paid for the Software Services under the applicable Service Schedule or (ii) for the Deliverable under the applicable SOW or Change Order that are, as applicable, subject to the Infringement Claim; provided that the total amount paid to you will not in either case exceed the total fees paid by Client to Thentia in connection with the Software Service under the applicable Service Schedule or under the applicable SOW or Change Order.We have no obligation for any claim of infringement arising out of: (i) the use or combination of any Software or Deliverable with any hardware, software, products, data or other materials not provided by us or authorized under the Agreement or otherwise authorized by us in writing; or (ii) use of any Software or Services or Deliverables other than in accordance with the Agreement; or (iii) your failure to accept patches, updates and bug fixes provided by us in accordance with the terms of the Agreement.For clarity, following the completion of any Professional Services and acceptance of the Deliverables, any Infringement Claims related to Deliverables used in the course of the performance of this Agreement will be subject to the indemnity terms relating to Software and Software Services and not Deliverables.
General Indemnity.We will, at our sole expense, defend your Indemnitees against any claim by any third-party (“Third-Party Claim”) to the extent arising out of: (i) any breach of the Agreement by us or our Personnel;(ii) bodily injury or death of any person or damage to real or tangible personal property resulting from any negligent act of ours or persons for whom it is responsible hereunder; or (iii) the willful misconduct or unlawful act of ours or persons for whom it is responsible hereunder.We will, subject to these terms, indemnify Client Indemnitees against all resulting costs, damages, and other liabilities (including reasonable legal fees) suffered or incurred by your Indemnitees.You will, at your sole expense, defend our Indemnitees against any Third-Party Claim to the extent arising out of: (i) any breach of the Agreement by Client or persons for whom it is responsible; (ii) a failure by Client or a Client Affiliate to comply with applicable Law (including a Privacy Law); (iii) the storage, processing or other handling of Client Data in accordance with the terms of the Agreement violates, infringes or misappropriates the rights of a third-party; and (iv) our authorized access to and use of any of your Systems or Materials in the performance of our obligations or otherwise contemplated hereunder or in a SOW.You will indemnify our Indemnitees against all resulting costs, damages, and other liabilities (including reasonable legal fees) suffered or incurred by our Indemnitees.
Indemnification Procedures.Following receipt of a notice of a Third-Party Claim (including any Infringement Claim) from a party entitled to indemnification hereunder, the indemnifying party will assume control of the negotiation, settlement, or defense of the claim.The indemnification obligations in this section are contingent upon an indemnified party: (1) Giving the indemnifying party prompt written notice of the indemnification-triggering claim (provided that the delay of or failure to give such notice will not relieve the indemnifying party of its indemnity obligations except to the extent it will have been actually prejudiced by reason of such failure or delay) together with reasonable particularity (to the extent that the information is available) as to: (i) the factual basis for the claim (including copies of all relevant pleadings, demands and other papers served on the indemnified party); and (ii) the amount, particulars and breakdown of the losses asserted in the claim, or, if an amount is not then determinable, an approximate and reasonable estimate of the potential amount of such losses to the extent reasonably practicable; (2)reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; and (3) giving the indemnifying party the right to control the defense and settlement of such claim, except that the indemnifying party shall not enter into any agreement that adversely affects the indemnified party’s rights or obligates the indemnified party to admit any wrongdoing without the indemnified party’s prior written consent.
21.Relationship Management
Either party may request or propose changes to the Services or a Service Schedule by submitting a written change request to the other party that describes the specific changes that are being requested (including changes to specifications, services or standards of performance and any costs associated with it) and the reason for the change request. We will advise you of the impacts of the proposed change on the Services or Software (or any associated project schedule and costs).Any change the parties agree on must be in writing and documented in a written “Change Order” that is signed by both parties.Any signed Change Order will be deemed to amend the Agreement to reflect the changes set out in such executed Change Order.
22.Dispute Resolution
If the parties have a dispute, they will, before pursuing other available remedies at law or under the Agreement and without prejudice to any rights or obligations of the parties under the Agreement, refer that dispute for resolution to the Representatives appointed for the Service Schedule or SOW, as applicable.If said Representatives cannot resolve or are unlikely to be able to resolve the dispute within ten (10) days after it is referred to them, the parties will refer the dispute to an executive body composed of an equal number of executive representatives from each party.If this executive body cannot resolve or agree on a means to resolve the dispute, (including through the use of mediation, arbitration, or otherwise), within 10 days after the dispute is referred to them, either party is free to interrupt discussions and pursue its rights and remedies under this Agreement, at law or in equity.Either party is free at any time, for any dispute or other circumstance, regardless of whether the parties are following at that time dispute resolution procedures set out in these terms, to seek injunctive relief, specific performance, or any other equitable relief.For greater certainty, this includes relief sought in the event of a breach of a party’s obligations of confidentiality.Both parties shall continue performing their respective obligations (including, in our case, the performance of services, and in your case, to continue to pay the fees) under the Agreement while any dispute is being resolved in accordance with these terms, unless and until such obligations are terminated or expire in accordance with the provisions of the Agreement.
23.Term and Termination
The term of the Agreement will continue in effect until the Agreement is terminated in accordance with its terms.The Service Term of each Service Schedule will be as specified in the applicable Service Schedule and may be subject to renewal or extension on the terms and conditions specified in the Service Schedule.We shall commence the provision of the Professional Services pursuant to a particular SOW on the date specified in such SOW, and the Professional Services shall continue until completed or earlier terminated in accordance with the terms of this Agreement or an applicable SOW if additional or different termination terms are included in the SOW.
Right to Terminate Agreement.Either party may terminate the Agreement as a whole or any applicable Service Schedule or SOW if: (1) the other party commits a material breach of the Agreement, and for breaches capable of being remedied, does not remedy the breach within thirty (30) days after it is notified of the breach.The party not in breach may require the other to present a written plan for the remedying of the breach and may at its discretion give the other more time to remedy the breach without losing its right to terminate the Agreement; (2) you violate or misappropriate our intellectual property rights; (3) the other party: (i) is or becomes bankrupt or insolvent, as those terms are defined in the bankruptcy and insolvency laws applicable in the jurisdiction referred below; (ii) becomes subject to the insolvency or bankruptcy laws of any jurisdiction in which it carries on business; (iii) fails, or declares its inability, to pay amounts owed when they become due; (iv) winds up or passes a resolution to wind up or otherwise ceases to carry on its ordinary business, voluntarily or otherwise; (v) causes the appointment of a receiver or custodian to take possession of its assets; (vi) arranges with its creditors or applies to an administrator or court of competent jurisdiction for protection from its creditors; (4) the other assigns its interest in the Agreement to any third-party in breach of the Agreement; or (5) any other event or circumstance occurs that expressly gives rise to a right to terminate the Agreement, as set out in the Agreement.
Termination for non-payment.Without limiting our rights specified in these terms, we may terminate this Agreement or any Service Schedule or any SOW immediately upon notice to you if you have failed to pay an amount payable under this Agreement (or the applicable Service Schedule) when due, and such amount remains unpaid fifteen (15) days after your receipt of notice from us that such amount has not been paid.
Termination of Agreement Following Service Term.Either party may terminate the Agreement as a whole, on notice to the other party upon the expiration or termination of all Service Schedules and SOWs.You will be obliged to pay us at the agreed upon rates for all Software delivered and Services performed up to the effective end date of all Service Schedules and SOWs.
Effects of Termination; Return and Retention of Items.On the expiration or termination of an applicable Service Schedule or SOW, subject to any agreement to the contrary: (1) we will, as applicable, (i) cease to make the Software and Services under the Service Schedule available to you and (ii) cease to perform the Professional Services under the SOW; (2) you will be obliged to pay us at the agreed upon rates for (i) all Software delivered and Services performed up to the effective end date of the Service Schedule and (ii) all Professional Services in accordance with the applicable terms; and (3) the parties will promptly return (or make available) to the other party any items belonging to the other then in its possession or under its control, deliver to the other any items to be delivered to the other under the Service Schedule or a SOW, and comply with its obligations for the return or destruction of Confidential Information under this Agreement and any Service Schedule or SOW.With respect to your Data, you will have the ability to download your Data from the Software Services until the later of sixty (60) days following the effective date of termination of a Service Schedule and the end of any winding down period as contemplated in subsection 11.7, after which we will have no responsibility to store, and may delete such data from the Software Services.
Winding Down.On the expiration or termination of a Service Schedule for any reason and in preparation for the ending of the Service Schedule, the parties will reasonably assist each other (or as may otherwise be specified in a Service Schedule), to bring the applicable Services to a close, and will carry out the activities in any winding down plan agreed on between the parties.If no winding down plan exists at any time between the parties, either party may require the other to negotiate one on request.The parties may agree in writing for us to provide, and you to receive, Services to facilitate your wind-down of Services.Such Services will be subject to the payment by you of additional fees at our then-current rates.
24.General
Notices.Notices shall be in writing and shall be delivered by registered mail, personal delivery or electronic mail and shall be addressed: (1) if to you, at your address and contact specified on the signature page to this Agreement and (2) if to us, at the Thentia address specified on the signature page to this Agreement to the attention of the Chief Legal Officer or at the following email address: shall be deemed to have been given: (i) in the case of registered mail, five (5) business days after such notice is mailed; (ii) in the case of personal delivery, one (1) business day after such notice is delivered; or (iii) in the case of electronic mail, on the business day following written confirmation of receipt.In the event of a postal disruption, notices may not be given by mail.Unless the parties expressly agree in writing to additional methods of notice, notices may only be provided by the methods contemplated in this section.This section does not apply to operational notices given by the parties in the day-to-day performance of the Services under a Service Schedule or Professional Services under a SOW, for which a different manner of delivery may be specified in the Service Schedule or agreed by the parties in writing, and which, for the avoidance of doubt, excludes any notices relating to breach of contract, indemnities, non-renewal or termination, which must be delivered in accordance with this section.
Approvals, Consents and Agreements.Unless otherwise stated, a party may not unreasonably delay or withhold any approval or consent to be given to the other.Approvals and consents by a party will be considered given only if given in advance and in writing by an authorized officer of the party.Matters to be agreed on by the parties must be agreed in writing.
No Waiver.No failure or delay to exercise any right and no custom of the parties may form a waiver of a party’s right to demand full compliance with the Agreement.All waivers must be in writing and signed by the waiving party.
Force Majeure.Neither party is responsible or liable to the other party for failure or delay to perform any obligation under the Agreement (excluding an obligation to pay) due to causes beyond its control (“Force Majeure”); provided that it: (1) notifies the other party of the delay or non-performance, the reason for such delay or non-performance and the anticipated period of delay or non-performance; and (2) takes reasonable steps to overcome and mitigate the effects of the event giving rise to such delay or failure as soon as reasonably practicable.Any date for performance of that obligation will be extended by the time of the delay.
No Agency or Employment; Thentia Personnel.The relationship between the parties is that of independent contractors.We are not in any sense a partner, joint venturer, agent or your employee, and our Personnel are not your agents or employees for federal, provincial, or municipal tax purposes or for any other purposes whatsoever.Our Personnel are the responsibility of Thentia.Our Personnel are not entitled to any benefits (including paid vacation and membership in insurance, pension, and other group plans) or forms of compensation that you grant to your employees.You are not responsible for withholding and paying for Thentia any taxes, unemployment insurance, or other amount to be deducted by statute from payments made to employees.Except to the extent set out in the Agreement, neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s approval.
Subcontracting.We may subcontract the Services or Professional Services. We will remain at all times liable under the Agreement for the subcontracted services and for any acts or omissions of its subcontractors to the same extent as we are liable to you.We shall be permitted, at our discretion, but subject to the terms of this section, to replace an existing subcontractor with a new subcontractor that meets all of the requirements of the Agreement.
Entire Agreement, Assignment, and Successors.The Agreement: (1) is the entire agreement between the parties about its subject matter superseding all previous agreements, promises, proposals and negotiations, whether written or oral; (2) may not be amended except by an agreement in writing; (3) may not be assigned by you without the prior written approval of the other party; and (4) is binding on and accrues to the benefit of the parties, their successors, and their permitted assigns.We may assign the Agreement without your prior written approval.If your procurement process requires the issuance of a purchase order (or other similar document), such document shall be for your administrative convenience only and any different or additional terms and conditions set forth in a purchase order accepted by us shall be void and of no legal effect.
Governing Law.The Agreement will be exclusively governed by the laws of the Province of Ontario, without regard to conflict of laws principles.Any claims, disputes, or litigation relating to the solicitation, or the execution, interpretation, performance, or enforcement of the Agreement shall be governed by the laws of the Province of Ontario. Venue for any action, claim, dispute, or litigation relating in any way to the Agreement shall be in Toronto, Ontario.
Survival.Any terms and conditions of the Agreement which are specified to survive, or which are required to give effect to the surviving terms will survive and remain in effect after the end of the Agreement.
Severability.If any term, provision, or part of the Agreement is to any extent held invalid, void, or unenforceable by a court of competent jurisdiction, the remainder of the Agreement, as applicable, will not be impaired or affected thereby, and each term, provision and part will continue in full force and effect, and will be valid and enforceable to the fullest extent permitted by Law.
No Third-Party Beneficiaries.No person not a party hereto will be a third-party beneficiary of any provision of the Agreement.
Language.It is the express wish of the parties hereto that the Agreement be drawn up in English.La volonté expresse des parties aux présentes est que ce Agreement soit rédigé en anglais.The parties hereto hereby waive any right to use and rely upon any other language.
25.Definitions
“Agreement” has the meaning given to it in the preamble above and includes all Schedules and Appendixes annexed hereto or otherwise incorporated herein, and any Change Orders entered into pursuant hereto, as each may be amended from time to time.
“Affiliate” of a Person means any other Person that, directly or indirectly, through one or more intermediaries, Controls, is controlled by, or is under common Control with, such Person.
“Anonymized Data” means aggregated, anonymized data that: (a) is derived from your Usage Information, and (b) does not contain any data, information, or traits from which any of your Data (or the source of that data), your identity, any of your Affiliates or any of their Authorized Users of the Services may be ascertained.
“Authority” means any court, stock exchange authority, regulatory, arbitral, governmental (including national, state, provincial and local governmental authorities), supranational or administrative agency, institution, or body.
“Authorized User” has the meaning given to it in the applicable Service Schedule.
“Your Data” means the data (including Personal Information) provided by, or collected by us on behalf of, you or any of your affiliates, as part of or in connection with the Services or Professional Services and the results of processing that data through the Services but does not include any Personal Information relating to your personnel or your affiliate personnel that is collected by us for relationship management purposes.
“Your Systems” means all hardware, software, systems, other equipment, technology, intellectual property, and similar items provided by or accessed by or used by us or otherwise made available to us by you in connection with our performance of the Agreement.
“Your Indemnitees” means you, your directors, officers, employees and Independent Contractors.
“Your Materials” means any templates, drawings, specifications, or artwork you provide to us in connection with and for the purposes of the Services.
“Your Marks” means all trademarks, trade names, logos, slogans, service marks, symbols, and your names, whether registered or not.
“Your Representative” means your authorized representative for a particular Service Schedule or SOW who is specified in such Service Schedule or SOW.
“Your Usage Information” means any data, including metadata, in any way generated from the use of the Services by you, or any of your Authorized Users.
“Confidential Information” means,
(1) for you, (i) all information about you or any of your affiliates that we receive, creates, processes, or stores in providing Services or Professional Services or otherwise, including information about its business, processes, the technology that it uses, its third-party contractors, customers or other identifiable individuals; (ii) Your Data, Your Materials and Your Owned Deliverables; (iii) Your Usage Information; and (iv) information identified as confidential.
(2) for Thentia, (i) Software, Thentia Property and Deliverables; (ii) financial information of Thentia disclosed to you and the fees charged for the Services; (iii) information marked confidential; and (iv) information about its business, processes, the technology that it uses, its third-party contractors, customers or other identifiable individuals.“Control” means, with regard to any Person, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of securities, by contract or otherwise.
Confidential Information of a party does not include information (other than information about identifiable individuals) that is: (i) lawfully in the public domain, (ii) previously known to or in the possession of the receiving party free from any obligation to keep it confidential, (iii) independently developed by the receiving party without any access to or use of Confidential Information of the disclosing party, (iv) rightfully obtained by the receiving party from a third-party lawfully in possession of the information and who is not bound by confidentiality obligations to the disclosing party.
“Financial Criminal Laws” means all Laws relating to (i) money laundering, terrorist financing, unlawful financial activities or unlawful use or appropriation of corporate funds; (ii) the prevention of bribery, corruption, fraud or similar related activities (including, where Thentia provides Services for or in the United States, the Foreign Corrupt Practices Act); and (iii) Sanctions.
“Independent Contractor” means any individual who is not an employee of a party, who provides services to the party under a contract for services and who provides those services in a manner similar in all material respects to the employees of the party.
“Laws” means any laws, rules, regulations, guidelines, and other legally binding measures issued, administered, or enforced by any Authority, as they may be amended from time to time.
“Person” means an individual, corporation, partnership, joint venture, governmental authority, unincorporated organization, trust, association, or any other entity.
“Personal Information” means recorded information about an identifiable individual or that may identify an individual.
“Professional Services” means any services which Thentia or its Affiliate has agreed to provide to Client pursuant to a Statement of Work signed by the parties, which may include services for the implementation and configuration of the Software.
“Privacy Laws” means all applicable Laws governing the collection, use, disclosure, or protection of Personal Information, including the Personal Information Protection and Electronic Documents Act (Canada).
“Representatives” mean the Client Representative and the Thentia Representative designated under a Service Schedule or SOW.
“Sales Taxes” means any and all present or future, sales, use, excise, value-added, goods and services, and other similar taxes that are imposed on under applicable Law and assessed against you or Thentia on the sale and provision of Software, Services and Professional Services, or on any fees, excluding all Thentia Taxes.
“Sanctions” means any economic, trade or financial sanctions imposed on an individual, entity, territory, or country, which are administered or enforced by any Authority.
“Security Breach” means any violation of the security or confidentiality of your Data in breach of the Agreement, including any unauthorized use, disclosure, or loss of or any inability to account for such your Data.
“Schedules” means the schedules listed in subsection 1.1 and any other schedules incorporated into and forming part of this Agreement in accordance with the terms and conditions hereof.
“Service Schedule” means a Schedule issued pursuant to and forming a part of the Agreement which sets out and describes certain Services and contains the business details and special terms applicable to such Services.
“Service Term” has the meaning given to it in the applicable Service Schedule.
“Services” means any services other than Professional Services that you acquire from Thentia under the Agreement, as defined in a Service Schedule, including Software Services.
“Software” means any software product for which Thentia provides access to you, or through which Thentia provides you a Service, under the Agreement.
“Software Documentation” means any and all documentation, in any form, supplied or made available to you in connection with the Agreement, including all user documentation, manuals and guides.
“Software Features” means the functional description of the Software that is set out in a Service Schedule.Software Features are limited to those Software Features for which you have subscribed for and paid.
“Software Services” means: (a) the provision by Thentia to you of remote access to certain Software and (b) Support Services, as each described in a Service Schedule.
“Statement of Work” or “SOW” has the meaning given to it above.
“Support Portal” means the Software support portal accessed via https://support.thentia.com.
“Support Services” means, for the purpose of this Agreement, the software incident management and support services as described in a Service Schedule.
“Thentia Indemnitees” means Thentia, its Affiliates, and their respective directors, officers, employees, subcontractors and agents.
“Thentia Personnel” means any personnel assigned by Thentia or by any subcontractor of Thentia to perform any part of the Services or Professional Services, including employees and Independent Contractors of Thentia.
“Thentia Property” means: (a) any concepts, inventions , discoveries, systems, software (including any Thentia Software), processes, techniques, methodologies, know-how, data, tools, templates, technology, documentation, specifications, designs, or any other items or materials, and any expressions of the foregoing, either developed by, owned by, or licensed to, Thentia prior to the provision of the Professional Services under a SOW or developed or created by Thentia in the course of the provision of the Professional Services, inclusive of all proposals and materials provided to you by Thentia in connection with the SOW; (b) all improvements, enhancements or derivatives to the items described in (a) that are developed by Thentia for the purposes of providing Professional Services under a SOW; and (c) the Deliverables (as defined herein).
“Thentia Representative” means the authorized representative of Thentia for a particular Service Schedule or SOW who is specified in such Service Schedule or SOW.
“Thentia Taxes” means all taxes based on Thentia’s income, capital, personnel, and subcontractors (if any).
Thentia USA Software Services Licensing Agreement
The Licensing Agreement is between the entity you represent, or, if you do not designate an entity in connection with a licensing purchase or renewal, you individual (“you” or “your”) and Thentia USA Inc. It consists of the general terms and conditions under which Thentia, or any Thentia Affiliate will provide professional services, software services, support services and other related services. It consists of the terms below, as well as the payment terms in your applicable Service Schedule, SLAs, and the Statement of Work (“SOW”) for your License or renewal (together, the “Agreement”).
1. Provision of Software Services
We shall provide you and you will have the right to receive the Services identified in this Agreement or any Transaction Agreement or Statement of Work subject to the terms and conditions stated in this Agreement.
2. Authorized Users
Where a Transaction Agreement provides for your receipt and your provision of Services, Thentia or its Affiliate will provide you with one or more administrator accounts for the Services (an “Admin Account”). You are responsible for: (a) all activities that occur under the Admin Account or Authorized Users’ accounts; (b) maintaining the security and confidentiality of all user names and passwords for the Admin Account and each Authorized User account; and (c) any loss or damage suffered by you or us as a result of your Authorized User’s failure to adequately safeguard any such account information. You shall promptly notify us of any unauthorized use or access to the Services of which you become aware or that you reasonably suspect.
3. Restrictions with respect to Services
You and your Authorized Users shall use the Services only for internal business purposes and in accordance with the Documentation. You shall ensure that its Authorized Users use of the Services complies with this Agreement. Without limitation of the foregoing, except as expressly permitted by this Agreement, you and your Authorized Users shall not, and shall not permit or authorize any Person, directly or indirectly, to: (a) use any user identifications, codes, passwords, procedures, or user keys issued to you for access to and use of the Services by any Person that is not authorized to access and use the Services under the terms of the Transaction Agreement; (b) license, sell, lease, rent, outsource, or otherwise make available the Services or any part thereof to any Person or act as an intermediary, aggregator, or service bureau; (c) make any use of the Services that violates applicable Law or privacy rights, Intellectual Property Rights, or other rights of any Person; (d) decompile, reverse engineer, or otherwise access or attempt to access the source code for the Services or make or attempt to make any modification to the Services (except to the extent the foregoing restriction is prohibited under applicable Law); (e) damage, disrupt, or impede the operation of Thentia’s services or systems; (f) circumvent the user authentication or security of the Services or any host, network, or account related thereto; (g) use any application programming interface (i.e., API) to access the Services other than an application programming interface made available by Thentia for such purpose or use or launch any automated system, including “robots,” “spiders,” or “offline readers” to access the Services; (h) mirror the Services on any server; (i) use meta tags or any other “hidden text” using Thentia’s trademarks, service marks, logos, or other indicia of origin; (j) transmit any viruses, worms, defects, Trojan horses, or programming of a destructive nature through the Services; (k) delete, remove, modify, obscure, fail to reproduce, or in any way interfere with any proprietary, trade secret, or copyright notice appearing on or incorporated in the Services; (l) use any non-production instance for any production activities; (m) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; or infringe property rights; or (n) access or use the Services to build or support, directly or indirectly, products or services competitive to Thentia.
4. Changes to Services
We may modify the Services (and features within the Services) from time to time at our sole discretion and such modifications shall replace prior versions. Except for modifications made to comply with applicable Law or address a security risk, we shall not make any modification to the Services that materially degrades the functionality, security or data protection features of the Services. The terms of this Agreement shall apply to modifications, updates and upgrades to the Services as may be subsequently provided by Thentia to you.
5. Suspension of Services
We may suspend immediately yours or any Authorized User’s account or access to or use of the Services without any penalty or liability at any time in our discretion in the event that we determine that such suspension is necessary or prudent, whether for security, emergency, legal, or other such reasons, including if such account or activity is known or reasonably suspected by us to be (a) disrupting or causing harm to our or another Person’s computers, systems, or infrastructure or (b) is in violation any term here, applicable Law, or the Documentation; provided that, we shall use commercially reasonable efforts to notify you of any such suspension, either before or after such suspension, and shall remove such suspension upon resolution to Thentia’s reasonable satisfaction of the circumstances giving rise to such suspension.
6. Third-Party Products
You acknowledge that, depending upon the Software configuration and deployment option selected by you, the use of the Software may require the use of Third-Party Products. You agree that we have no responsibility or obligation to supply (except as may be expressly specified in the Documentation or the Agreement), or any liability whatsoever concerning, the Third-Party Products and that you shall be solely responsible for sourcing, acquiring, and licensing such Third-Party Products directly from the applicable Third-Party Products vendors (unless the parties hereto otherwise agree in writing). We do not warrant any such Third-Party Applications. Any procurement by you of such Third-Party Applications or services is solely between you and the applicable Third-Party provider. You acknowledge and agree that Thentia may enable such Third-Party providers to access Client Data for the interoperation of such Third-Party Products with the Services. Thentia shall not be responsible for any disclosure, modification or deletion of Client Data resulting from any such access by Third-Party Products or Third-Party providers.
7. Monitoring Use
We shall have the right to monitor your use of the Services for the purpose of verifying your compliance with this Agreement, including to verify the fees payable in respect of your use of the Services.
8. Attendance on Client Premises and Access to Client Systems
If under this Agreement we may come onto your premises or access to your systems remotely, we will comply with all terms agreed on by the Parties for those situations and observe all of your rules, guidelines, and policies that are provided in writing by you to us applicable to those situations.
9. Client Obligations
You shall cooperate with us in all matters relating to the Services in a timely manner and execute and deliver all documents, forms, or instruments necessary for us to implement and render the Services; provide us with all reasonable and necessary data and information in the format requested by us (shall be your responsibility to provide the Client Data in the format requested by us and to ensure the accuracy and adequacy of all such Client Data), and will otherwise provide all reasonable assistance required of yours in order for us to successfully implement the Services on a timely basis; follow our direction, policies, and procedures with respect to the design and implementation of the Services; provide access to your premises and such office accommodation and other facilities as may reasonably be requested by you for the purposes of performing the Services; respond promptly to any Thentia request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for us to perform Services in accordance with the requirements of this Agreement; and provide such information as we may reasonably request in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects.
10. System Requirements
The networks, systems, equipment, cabling, facilities and workstations from which you and your Authorized Users access and use the Services or that are used directly or indirectly in the provision of the Services (the “Client Systems”) shall be in good working order, suitable for the purposes for which it is used in relation to the Services, and conforms to all relevant Thentia, legal or industry standards or requirements (the “System Requirements”). Client shall keep the Client Systems current at all times with the then-current System Requirements. Thentia shall have no liability for any failure to access or use the Services due to the failure of any Client Systems to comply with the then-current System Requirements.
11. Client Performance.
The parties agree and acknowledge that: (a) our performance of the Services shall be conditional upon, and subject to, your performance of your obligations hereunder (including any obligations specified in a SOW); (b) that we shall not be liable or responsible, in any manner or to any extent, for any failure of ours to perform all, or any part of, the Services to the extent that any such failure is caused by, due to or contributed to by a failure of Client to perform its obligations; and (c) that we will not be liable for loss or damage or errors arising from reliance on any Client Data or other information, materials, data, graphics, requirements, documents (regardless of form or format) provided by or on behalf of you to us in connection with the performance of the Services (collectively, the “Client Materials”, provided that such term shall not include any Services, Thentia IP, or third-party materials or technology).
12. Access and Use of Client Provided Materials
You acknowledge that in the performance of the Services you may make available to us certain Client Materials and/or Client Data, and further acknowledges that in order to provide the Services, Thentia may require remote access to your Systems. Client hereby grants to us a limited, non-exclusive, sublicensable (to Thentia and its affiliates, personnel, and subcontractors), non-transferable and fully paid-up license to access, store and use any Client Materials, Client Data and/or Client Systems (including, where authorized to do so, via remote access) made available to Thentia for the sole purpose of and only to the extent required in order to perform its obligations under this Agreement, to perform the requested activities. In such circumstances you agree that we may transfer or disclose Client Data to third parties, including to our affiliates, personnel, and subcontractors and any third-party hosting providers, to the extent reasonably required to perform its obligations hereunder. Subject to the limited licenses granted herein, we acknowledge and agree that all right, title and interest whatsoever, in and to the Client Materials, Client Data and Client Systems including all intellectual property and other proprietary rights therein is, and shall be, owned solely and exclusively by you and/or your third-party licensors. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your Materials and Client Data. You are solely responsible for the selection and implementation of procedures and processes and controls regarding the access, security, encryption, use and transmission of Client Data to us.
13. Cooperation
The parties will work together to implement the Services. You acknowledge and agree that the Services provided by us are not fully customizable and you shall follow Thentia’s direction, policies, and procedures with respect to the design and implementation of the Services.
14. Financial
Fees Payable. Thentia will invoice you in respect of, and you shall pay to Thentia, the fees for the (the “Fees”). All payments are due in USD currency. All amounts paid by you to Thentia are non-refundable and are not subject to offset.
Invoices, Taxes, and Withholdings. Unless otherwise set out, you will pay all Fees invoiced within 30 days of receipt of each invoice. Invoices will be sent, and Fees shall be paid electronically unless otherwise agreed with you. You shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by you hereunder except for any taxes imposed on, or with respect to, Thentia’s income, revenues, gross receipts, personnel, or real or personal property or other assets. We will invoice you for applicable taxes at the time the associated Fees are invoiced.
Late Payment. Late payments shall accrue interest from the due date at a rate of one and one-half percent (1.5%) per month or, if lower, the highest rate allowed by applicable Law. Payments shall first be applied against the payment of any late fees that have accrued, after which any balance remaining shall be applied to payment of the principal due and outstanding. You shall pay all reasonable expenses incurred by us related to the collection of late payments, including reasonable attorneys’ fees.
Suspension for Nonpayment. Without limiting Thentia’s rights, if you fail to pay any amounts when due and you do not remedy such failure within five (5) Business Days after the date that we notify you of the unpaid amounts, we may, without liability, cease performing or making available, as applicable, some or all of the Services, including access to the Services, until full payment of all outstanding amounts is received.
15. Warranties
By Both Parties. Each Party represents and warrants to the other Party that: (a) it has the right, power, and authority to enter into this Agreement and perform its obligations hereunder; (b) this Agreement is a legal and valid obligation binding upon it and enforceable in accordance with its terms; (c) its entry into this Agreement and performance hereof shall not result in any breach or default under, and do not conflict with, any agreement, instrument, or understanding, oral or written, to which it is a party; and (d) all of its activities under this Agreement shall be performed in compliance with all Laws applicable to it, including applicable Privacy Laws. If the Parties enter into an Agreement after the Effective Date, then these representations and warranties shall be deemed made by each Party as of the effective date of such Agreement.
By Thentia. Thentia represents, warrants, and covenants that (a) it will provide the Services in a professional manner using at least the same degree of care, skill and supervision as would be exercised by a reasonable and prudent person experienced in performing similar services; (b) it will use personnel with suitable skills to perform the Services; and (c) the Services will function as described in the Documentation in all material respects.
Remedy. For any breach of our warranties under these terms, your sole and exclusive remedy and our entire liability shall be the correction of the deficient Services that caused the breach of warranty, or if we cannot substantially correct the deficiency in a commercially reasonable manner, you may terminate the deficient Services pursuant to the terms herein and we will refund to you the Fees for the terminated Services that you pre-paid to us in respect of the period following the effective date of termination.
By Client. You represent, warrant, and covenant that (a) you own all right, title, and interest in or has a license to all Client Data and has the right to, and has obtained from all applicable Persons all rights and consents necessary to, provide such Client Data to us; and (b) it has obtained all consents and provided all notices required under applicable Privacy Laws for the collection and use of all Client Data for the purposes of this Agreement.
Warranty Disclaimer. Except for the express warranties set forth in this article 4, the services are provided “as is” and “as available” and Thentia and its affiliates and third party suppliers hereby expressly disclaim all warranties and conditions of any kind or nature, whether express, implied or statutory, including any implied warranties of merchantability, title, non-infringement, fitness for a particular purpose, that defects shall be corrected, that the services shall be free of viruses or other harmful components, or that access to the services and their use shall be uninterrupted or error-free, and all warranties arising from course of dealing, usage, or trade practice. All third-party materials are provided “as is” and any representation or warranty of or concerning any third-party materials is strictly between client and the third-party owner or distributor of the third-party materials.
16. Ownership Rights
Thentia IP. As between Client and Thentia, Thentia owns and shall retain all right, title, and interest, including all Intellectual Property Rights, used in or to provide the Services, the Deliverables, the Documentation, Thentia’s and its licensors’ trademarks, service marks, logos, and other indicia of origin used in connection with the Services and all proprietary information and know-how of Thentia and its licensors incorporated in or used in the provision of the Services, and all updates, modifications, improvements, and derivative works of any of the foregoing (collectively, the “Thentia IP”). All right, title and interest, including all Intellectual Property Rights, in Thentia IP vests automatically and immediately in Thentia on creation. Thentia expressly reserves all rights in the Thentia IP. All use of Thentia’s and its licensors’ trademarks, service marks, logos, and other indicia of origin hereunder shall inure to the benefit of the owner thereof.
Client Data. As between Client and Thentia, Clients owns and shall retain all right, title and interest, including all Intellectual Property Rights, in Client Data. Client hereby grants to Thentia a limited, non-transferable, non-exclusive, worldwide, fully paid up, royalty-free sublicensable (to Thentia and its Affiliates, personnel, and subcontracts) license to, during the term of the applicable Transaction Agreement, use, copy, store, and display Client Data solely as necessary for the purpose of performing its obligations under this Agreement and any SOW. Thentia shall have no obligation to check any Client Data for accuracy, adequacy, or completeness and may assume that all Client Data uploaded to the Services or provided to Thentia is accurate, adequate, and complete as submitted. Thentia will not be responsible for any error, omission, or damages caused by an inaccuracy, inadequacy, or lack of completeness with respect to such Client Data.
Feedback. You and your employees, agents and subcontractors may provide to us, but have no obligation to provide, input regarding the Services, including comments or suggestions regarding the possible creation, modification, correction, improvement, or enhancement of the Services or other products or the technology marketplace in general (collectively, “Feedback”). You hereby grant to us a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid up, transferable license, with right of sublicense, to use, reproduce, modify, disclose, and otherwise exploit all Feedback in any manner for any purpose.
Residual Knowledge. You acknowledge and agree that: (a) Thentia has certain knowledge, skills and expertise which forms an integral and continuing part of its business; (b) in the process of performing services for you hereunder and services for others, we have developed, and will continue to develop general skills, know-how, expertise, professional experience and generic information of general application that are neither unique nor specific to Client (including underlying concepts and ideas, knowledge, techniques, skills, methods and know-how) (“Background Knowledge”). Subject to our obligations of confidentiality hereunder, you agree that nothing in this Agreement or any SOW shall limit, restrict or otherwise prevent us and/or our licensors from using any Background Knowledge (including any Background Knowledge that it acquires in connection with this Agreement or a SOW), including to provide services to any other person.
General. To the extent any right, title, interest or Intellectual Property Rights in any of the Thentia IP does not automatically and immediately vest in Thentia, you hereby irrevocably assigns, transfers and conveys (and shall cause to be assigned, transferred and conveyed), without reservation, and, to the extent necessary, agrees to irrevocably assign, transfer and convey, without reservation, to us, all such right, title and interest thereto and to waive, or cause to be waived, all moral and similar rights therein and thereto in favor of Thentia. Client agrees to execute such documents and cause its employees, agents, and subcontractors to execute such documents as may be required to give effect to the ownership rights of Thentia as set out herein.
Protection of Client Marks and Artwork. “Client Marks” means all trademarks, service marks, logos, and other indicia of origin belonging to you, whether registered or not. “Artwork” means any templates, drawings, specifications, or other artwork you provide to us in connection with our performance of Services. We may use any Client Mark or Artwork only if necessary to perform the Services and then only as approved in advance by you. We will comply with any written specifications provided by you to us for such use. We will not (a) impair your rights in Client Marks in any way; (b) acquire any title to Client Marks through their use and may not claim any title to Client Marks through their use; (c) make any unlicensed use of any Client Mark or (d) file any application in any jurisdiction for the registration of any Client Mark. Thentia’s use of Client Marks is to accrue to your benefit. Any artwork created by us containing any Client Mark must be approved by you before it may be used for Services.
Preservation of Parties’ Rights. Except as expressly stated, neither Party transfers to the other any Intellectual Property Rights or other property under this Agreement, including any Transaction Agreement. Either Party is free to use in its business any skills, experience, ideas, concepts, know-how, or techniques that it acquires in performing or receiving the Services, so long as in doing so that Party does not infringe the other’s Intellectual Property Rights or breach its obligations in respect of Confidential Information under this Agreement.
17. Confidentiality Obligations
Confidential Information. “Confidential Information” means all data and information in any form whatsoever, whether disclosed orally or disclosed or accessed in written, electronic, or other form of media disclosed or made available by a Party or its Affiliates (“Disclosing Party”) to the other Party or its Affiliates (the “Receiving Party”) in the course of dealings under this Agreement that can reasonably be inferred to be confidential or proprietary in nature, whether or not marked or described as “confidential”. Client Data, Client Usage Information and Anonymized Data generated therefrom shall constitute Client’s Confidential Information. Information communicated, disclosed, or made accessible by Thentia to you in the course of providing the Services (excluding Client’s Confidential Information) constitutes Thentia’s Confidential Information, including the Services (excluding Client Data), the Deliverables (excluding Client’s Confidential Information included therein), the Documentation and all other Thentia IP. The terms and conditions of this Agreement shall constitute Confidential Information of Thentia. Despite the foregoing, Confidential Information shall not include any information (other than information about identifiable individuals) which (i) is or becomes publicly known through no wrongful act or failure to act on the part of the Receiving Party; (ii) is rightfully obtained by the Receiving Party, free from any obligation of confidence, from a Third Party; (iii) is known to the Receiving Party prior to such information having been furnished to the Receiving Party in the course of the dealings relating to this Agreement and was not subject to any confidentiality obligation on the part of the Receiving Party; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
Protection of Confidential Information. Each Party, as a Receiving Party, shall: (a) hold the Confidential Information of the Disclosing Party in confidence; (b) not use or copy the Confidential Information of the Disclosing Party except for purposes of exercising its rights or performing its obligations under this Agreement; (c) not disclose the Confidential Information of the Disclosing Party except to its directors, officers, employees, independent contractors and subcontractors who (i) have a need to know such information for the purposes of the Party exercising its rights or performing it obligations under this Agreement, (ii) are informed of the confidential nature of the information, and (iii) agree in writing or are otherwise bound to act in accordance with the obligations set out in this Article 6, (d) safeguard the Confidential Information of the Disclosing Party using the same degree of care as it uses to protect its own Confidential Information of a like nature, but in any event not less than a reasonable degree of care; and (e) promptly notify the Disclosing Party in writing of any unauthorized disclosure or unauthorized use of the Disclosing Party’s Confidential Information of which it becomes aware. Further, Thentia will not compile, capture, track or use any Client Usage Information, except as Anonymized Data (i) for purposes of verifying Client’s compliance with this Agreement (including determination of Fees for Services); and (ii) to provide, support, maintain and improve the Services (but for no other purpose).
Exceptions. Each Party, as a Receiving Party, shall be relieved from its obligations: (a) to the extent the Disclosing Party gives its prior written consent; or (b) to the extent necessary under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that unless otherwise prohibited, the Receiving Party shall provide prior written notice of such disclosure to the Disclosing Party to afford the Disclosing Party the opportunity to seek a protective order. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions of this Agreement, the Receiving Party will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information.
Information Security. Thentia shall use commercially reasonable electronic, organizational, and physical security measures to safeguard Client Data. Thentia shall notify you promptly in the event of any loss or theft of, or unauthorized access to or use or disclosure of, Client Data. You acknowledge and agrees that it is solely responsible for: (a) implementing and managing security and privacy measures for the Client Systems and any items not provided and managed by Thentia within the Services, such as systems and applications built or deployed by you upon the Services, any Third-Party Products, and your end-user access control to the Services, (b) all information, instructions, and materials provided by or on behalf of you or any Authorized User in connection with the Services; (c) your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services; (d) the security and use of you and your Authorized Users’ access credentials; (e) all access to and use of the Services directly or indirectly by or through the Client Systems or its or its Authorized Users’ access credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use; and (f) the accuracy and completeness of all Client Data. In the event of a security breach, we will: (i) notify you on a timely basis by telephone and in writing at the address provided for such purpose in the Transaction Agreement or otherwise designated by you in writing; (ii) reasonably assist you in the management of any consequences arising from it; (iii) take reasonable steps intended to mitigate harm resulting from it; and (iv) take any steps determined reasonably necessary by Thentia designed to prevent its recurrence.
Transmission of Data. You understand that the technical processing and transmission of data is fundamentally necessary to use of the Services. You are responsible for securing DSL, cable or another high-speed internet connection and up-to-date “browser” software in order to utilize the Services. You expressly consent to our interception and storage of data (including Client Data) as needed to provide the Services hereunder, and you acknowledge and understand that Client Data will be transmitted over the internet, and over various networks, only part of which may be controlled by us. You further acknowledge and understand that such data transmitted in the use of the Services may be accessed by unauthorized parties when communicated across the internet, network communications facilities, telephone, or other electronic means. Without limiting our applicable obligations, Thentia is not responsible for any Client Data which is delayed, lost, altered, intercepted, or stored during the transmission of any data whatsoever across networks not controlled by Thentia, including, but not limited to, the internet and your local network.
Obligations on Termination. On the termination or expiry of this Agreement or any Transaction Agreement, as applicable: (a) Client will have the opportunity to download its Client Data from the Services in accordance with and within the time periods set out in subsection 9.4(a), after which Thentia will have no responsibility to store, and may delete such data from the Services; and (b) other than with respect to Client Data in the Services for which (a) applies, each Party, as a Receiving Party, shall, at the request of the Disclosing Party: (i) promptly return or, at the option of the Disclosing Party, destroy all Confidential Information of the Disclosing Party which is in physical form that is held by the Receiving Party or by other Persons for which the Receiving Party is responsible hereunder; and (ii) destroy all Confidential Information of the Disclosing Party in electronic form, whether held by the Receiving Party or by other Persons for which the Receiving Party is responsible hereunder; provided that each Party, as a Receiving Party, may retain Confidential Information of the Disclosing Party (x) stored in electronic records, to the extent it is backed up or archived as a matter of routine processes on the electronic information management and communications systems or servers of the Receiving Party and such backed up or archived Confidential Information is not intentionally accessed; (y) to the extent retention is required by applicable Law; or (z) as may be required for the Receiving Party to demonstrate its compliance with this Agreement, provided that in each case, the Confidential Information remains subject to the confidentiality obligations herein, which obligations survive indefinitely. Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.
Use of Client Name/Marks. We may use your name and any Client Mark on our website and in marketing and advertising materials for the purpose of identifying you as our customer.
18. Liability
Exclusion of Certain Damages. In no event will Thentia or its Affiliates be liable to you or its Affiliates for any special, indirect, punitive, enhanced, incidental, consequential or exemplary damages, or any loss of profits, revenue, data, goodwill or reputation, or failure to realize expected savings, or any other economic loss, even if it has been informed of the possibility of these types of damages and notwithstanding the failure of any agreed or other remedy of its essential purpose. This exclusion of liability applies regardless of the cause of action, whether in contract or tort, including without limitation negligence and strict liability.
Liability of Liability. In no event shall the aggregate liability of Thentia and its affiliates arising out of or related to this agreement, whether under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, exceed the total amounts actually paid by client to Thentia for the services giving rise to the liability during the twelve (12) months immediately preceding the event giving rise to such liability.
19. Indemnity
Infringement Claims. Thentia will, at its sole expense, defend you against any claim by a Third Party that your use of the Services in accordance with the Transaction Agreement infringes any patent, copyright, or other Intellectual Property Right of the Third Party (“Infringement Claim”) and will indemnify you against all amounts finally awarded by a court against you or included in a settlement; provided that you: (a) promptly notify us in writing of the claim; (b) give us the information, reasonable assistance and cooperation that we request (at our expense) for the defense and settlement of the claim, including mitigation efforts; and (c) provide us sole authority to defend or settle the claim. No settlement may be entered into by Thentia on behalf of you without your prior written consent (which consent shall not be unreasonably withheld, conditioned, or delayed), unless such settlement contains an unconditional release of your liability. Your failure to give prompt notice of the Infringement Claim will not affect the indemnification provided by us except to the extent that any failure or delay actually prejudices us.
Infringement Claims – Further Actions. If the Services become the subject of an Infringement Claim or if Thentia reasonably believes that the Services may infringe, misappropriate or violate any Intellectual Property Rights of a Third Party, Thentia may in its discretion and at no cost to you: (a) obtain sufficient Intellectual Property Rights for you to continue using the Services; (b) modify the Services so that they no longer infringe any Intellectual Property Rights, without substantially diminishing or impairing the Services’ functionality; or (c) require you to stop using the Services, terminate this Agreement or any applicable Transaction Agreement and refund to you any prepaid Fees in respect of Services not received in the period for which the pre-payment was made due to early termination.
Exclusions. Thentia’s obligations shall not apply to any actions or claims of infringement arising out of: (a) the use or combination of the Services with any hardware, software, products, data, or other materials not authorized under this Agreement or otherwise authorized by Thentia in writing; (b) use of the Services other than in accordance with this Agreement; or (c) the modification or alteration of the Services by any Person other than by or on behalf of Thentia.
Sole Remedy. This constitutes Thentia’s entire liability, and your sole and exclusive remedy, with respect to the infringement, misappropriation, or violation of Intellectual Property Rights and related claims and actions in connection with this Agreement.
20. Termination of Agreement
This Agreement shall remain in effect until its earlier termination or the expiration or termination of all Agreements. Any applicable terms and conditions with respect to renewal (if any) shall be set out in the Agreement documents. Either Party may terminate this Agreement or any Transaction Agreement immediately upon notice to the other Party: (a) if such other Party is in material breach of this Agreement (including any Transaction Agreement) and has failed to cure such breach within thirty (30) days after receipt of notice from the non-breaching Party describing the breach in reasonable detail (provided that this right is subject to any exclusive remedies described in this Agreement, including the Service Credit); (b) if such other Party has breached the Intellectual Property Rights of the terminating Party; (c) if such other Party (i) becomes subject to bankruptcy or insolvency proceedings, (ii) fails or declares its inability to pay amounts owed when they become due, (iii) causes the appointment of a receiver or custodian to take possession of its assets, or (iv) arranges with its creditors or applies to an administrator or court of competent jurisdiction for protection from its creditors; (d) on the occurrence of such other event or circumstance that gives rise to a right to terminate as expressly set out herein; or (e) a termination of any agreement between you, on one hand, and Thentia or its Affiliate, on the other hand. A termination of this Agreement in accordance with these terms shall be deemed to terminate all Transaction Agreements then in effect. Without limiting Thentia’s rights under these terms, we may terminate this Agreement or any Transaction Agreement immediately upon notice to you if you have failed to pay an amount payable under this Agreement when due, and such amount remains unpaid fifteen (15) days after your receipt of notice from us that such amount has not been paid.
In respect of a Transaction for the provision of Services, commencing on, as applicable: (i) the date of expiry of the term for the provision of Services, where a Party has provided a notice of non-renewal to the other Party or the Transaction Agreement has otherwise expired in accordance with its terms; (ii) the date of Thentia’s receipt of a notice of termination from you, where you are terminating; or (iii) the date of your receipt of a notice of termination from Thentia, where Thentia is terminating in accordance with the terms herein, you shall have a period of sixty (60) days following in which to download the Client Data applicable to the expired or terminated Services. You acknowledge and agrees that: (y) it is your sole responsibility to download the Client Data from the Services within the time period set out in this subsection; and (z) we have no responsibility to store, and may delete, Client Data after the expiry of the time period set out in this subsection.
Upon the expiration or termination of this Agreement or any Transaction Agreement, you shall immediately cease all access to and use of the Services and associated Thentia IP and the rights granted in this Agreement or the Transaction Agreement (as applicable) with respect to the terminated Services shall automatically terminate (other than the rights to download Client Data from the Services). Where you have terminated this Agreement or a Transaction Agreement, as applicable, pursuant to these terms, you shall immediately pay to Thentia all outstanding Fees and other amounts due hereunder for Services received up to the effective date of termination. Where Thentia has terminated this Agreement or a Transaction Agreement, you shall immediately pay to Thentia (i) all outstanding Fees and other amounts due hereunder for Services received up to the effective date of termination, as well as (ii) all Fees that would have been due for the rest of the term had Thentia not terminated this Agreement or the Transaction Agreement, as applicable. Where the applicable Transaction Agreement includes minimum fee or spend commitments over the term of the Transaction, the amount referred to in (ii) in the foregoing sentence shall be calculated as the aggregate amount of such minimum fee or spend commitments for the rest of the term that would have applied had Thentia not terminated this Agreement or the Transaction Agreement.
Termination of a Transaction Agreement does not automatically terminate other agreements that may then be in effect between the Parties (even if such other agreements are in respect of Transactions which incorporate the General Terms). Each separate agreement between the Parties may be terminated in accordance with its respective terms and conditions. Termination of the Transaction Agreement automatically terminates the General Terms incorporated by reference therein only for the specific Transaction that has been terminated (subject to subsection 10.13).
On termination or expiration of this Agreement or any Transaction Agreement, the Parties may agree in writing for Thentia or its Affiliate to provide, and you to receive, Professional Services to facilitate your wind-down of Services. Such Professional Services will be provided at Thentia’s then-current rates and may be provided pursuant to a separate professional services agreement.
21. General Terms and Conditions
Parties’ Representatives. The Parties will each appoint a representative for the Services.
Injunctive Relief. Your breach of any restrictions set forth in this Agreement may cause immediate and irreparable harm to Thentia for which money damages may not constitute an adequate remedy. In such event, Thentia shall be entitled to seek injunctive or other equitable relief for any such violation or incident, without proof of actual damages. Except as expressly set forth in this Agreement, the right and remedies under this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.
Notices. Any notice, request, demand, instruction, or other document to be given under this Agreement must be in writing and delivered by registered mail, email or by hand delivery to the addresses set out in the Transaction Agreement (if applicable), or to any other address of which a Party may notify the other in writing from time to time. Notice by hand delivery shall be effective on the date delivered, notice by registered mail shall be effective on the date received and notice by email shall be effective on the date sent, unless (a) the sender has received an error or similar message in respect thereof, in which case the notice is not effective; or (b) the email was sent later than 5 p.m. Toronto time, in which case the email notice is effective on the immediately following Business Day. If the last day of any time period falls on a Saturday, Sunday, or legal holiday, then the duration of the time period shall be extended to the next succeeding day that is not a Saturday, Sunday, or legal holiday. Time is of the essence of this Agreement.
Severability. If any provision of this Agreement or the application of any provision to any person or circumstance is determined to be unenforceable to any extent, the remaining provisions of this Agreement shall remain in effect if the essential provisions of this Agreement for each Party remain enforceable. If any provision is determined to be invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible.
No Waiver. No failure or delay to exercise any right and no custom of the Parties may form a waiver of a Party’s right to demand full compliance with this Agreement.
Force Majeure. If the performance by a Party (the “Affected Party”) of any of its obligations (excluding payment obligations) under this Agreement is prevented, hindered, or delayed due to any cause beyond its reasonable control, including, work stoppages, natural disasters, catastrophic weather events, fires, riots, outbreaks of disease or pandemics, accidents, terrorism, war, unavailability of Third Party materials, or outages of power or communications networks (each a “Force Majeure Event”), and such non-performance, hindrance, or delay could not have been prevented by the Affected Party through use of reasonable precautions commonly taken in such Party’s industry to prevent the effects of such a Force Majeure Event, the Affected Party shall not be liable for such non-performance, hindrance, or delay as long as the Force Majeure Event and its effects on the Affected Party continue. The Affected Party shall promptly notify the other Party in writing of the Force Majeure Event and the effect on the Affected Party’s performance. The Affected Party shall employ commercially reasonable efforts to mitigate the effects of the Force Majeure Event and resume performance as soon as practicable. Provided, however, that a Force Majeure Event shall not excuse non-payment by an Affected Party under this Agreement.
Relationship of the Parties. Thentia is an independent contractor, not your agent, joint venturer, partner, or fiduciary, and does not undertake to perform any of your regulatory obligations or assume any responsibility for your business or operations. Each Party is responsible for determining the assignment of its employees and agents, and their respective contractors, and for their direction, control, and compensation.
Subcontracting. Thentia may subcontract obligations under this Agreement but will remain liable to you for any subcontracted obligations.
Assignment. You may not assign this Agreement, in whole or in part, without the prior written consent of Thentia. Any assignment or purported assignment in violation of this section is null and void. This Agreement shall be binding on and inure to the benefit of the Parties and their respective permitted successors and assigns.
Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express, or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Entire Agreement. This Agreement (including any Transaction Agreement entered into after the Effective Date) is the entire agreement between the Parties about its subject matter and may not be amended except by an agreement in writing.
Governing Law. Any legal action or proceeding with respect to this Agreement shall be brought exclusively in a District Court in the State of Delaware, or the United States District Court for the State of Delaware. By execution and delivery of this Agreement, the parties irrevocably accept the exclusive jurisdiction of such courts and waive, to the fullest extent permitted by law, any objection that they may now or hereafter have to the jurisdiction or laying of venue of any such litigation brought in any such court and any claim that any such litigation has been brought in an inconvenient forum. The parties acknowledge that the acceptance of the exclusive jurisdiction of such courts is a material consideration for entering into and performing this Agreement.
Survival. Any terms and conditions of this Agreement which by their nature extend beyond the end of the Term will survive and remain in effect after the end of this Agreement.
Execution and Delivery. This Agreement may be signed electronically and in any number of counterparts, all of which taken together will constitute one single document. The electronic exchange of signed copies (including PDF copies or other legible image files) of agreements will be (among other methods of delivery) sufficient to bind the Parties.
Waiver of Jury Trial. To the extent legally permissible, the parties irrevocably waive any right to demand that any action, proceeding, or counterclaim arising out of or in any way related to this Agreement or the relationship of the parties be tried by jury. This waiver extends to any right to demand a trial by jury arising from any source, including the Constitution of the United States or any state therein, common law, or any applicable statute or regulation. The parties acknowledge that they are knowingly and voluntarily waiving their rights to demand trial by jury and that such waiver is a material consideration for entering into and performing this Agreement.
Interpretation. The rule of construction that an agreement is to be construed most strictly against the party who drafted the agreement shall not be applicable to this Agreement because all Parties participated in the preparation of this Agreement. Headings are inserted for convenience only and are not to be used to interpret this Agreement. “Including”, “in particular”, “such as” and similar expressions are not words of limitation. References to subsections and Articles are references to subsections and Articles in these General Terms.
Conflict. If there is any conflict between the Agreement, any Transaction Agreement and these General Terms, the Transaction Agreement will prevail. In the event that a Transaction Agreement conflicts with the General Terms, the prevailing terms in the Transaction Agreement will apply only to that Transaction and not generally to all Transactions between the Parties.
No Exclusivity. Unless the Agreement provides otherwise, each Party acknowledges that the Agreement is non-exclusive and either Party may contract with other parties for the purchase, sale, or license of services comparable to the Services.
22. Definitions
“Affiliate” means, in relation to a Person, any Person that controls, is controlled by, or is under common control with such first-mentioned Person, where control means possessing (a) directly or indirectly, the power to direct or cause the direction of the management, policies, or operations of a Person, whether through ownership of voting securities, by contract, or otherwise or (b) the ownership of, or the power to vote, more than fifty percent (50%) of the voting stock, shares, or interests of a Person.
“Agreement” means this Agreement and each Exhibit attached hereto, as may be amended from time to time in writing by the Parties.
“Anonymized Data” means aggregated, anonymized data that: (a) is derived from Client Data or Client Usage Information, and (b) does not contain any information that is protected by Privacy Laws.
“Authority” means any applicable court, stock exchange authority, regulatory, arbitral, governmental (including national, state, provincial and local governmental authorities), supranational or administrative agency, institution or body.
“Authorized User” means your employees or others authorized by you to access and use the Services on your behalf.
“Client Data” means the data provided by, or collected by Thentia for, you as part of or in connection with the Services, and the results of processing that data through the Services.
“Client Usage Information” means any data, including but not limited to metadata, in any way generated from the use of the Services by you, or any of their Authorized Users, including but not limited to clients.
“Deliverables” means any written or electronic items (such as software, code, specifications, diagrams, flowcharts, forms, reports, and other materials and work product) being developed for or delivered to you as part of the Services.
“Intellectual Property Rights” means all patents, copyrights, moral rights, database rights, design rights, and rights in trade secrets and know-how, all other intellectual property and proprietary rights, all other equivalent or similar rights which may arise or exist anywhere in the world, in each case, whether registered or unregistered, and all applications for any of the foregoing rights.
“Laws” means any applicable laws, rules, regulations, guidelines and other legally binding measures issued, administered or enforced by any Authority, as they may be amended from time to time.
“Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization, self-regulatory organization, regulatory authority, or other governmental authority.
“Privacy Laws” means all Laws governing the collection, use, disclosure or protection of personal information.
“Professional Services” means any services other than Services which Thentia or its Affiliate has agreed to provide to you under the Transaction Agreement or any other written agreement between the parties.
“Services” means any software-as-a-service product for which Thentia provides access to you, or through which Thentia provides to you under the applicable Transaction Agreement and any Professional Services.
“Third Party” means a Person other than Thentia, you, or our respective Affiliates.
“Third Party Applications” means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than Thentia that interoperate with the Services.
“Transaction Agreement” means any future Transaction Agreement the Parties enter into with respect to a Transaction, which incorporates, by reference, this Agreement and is signed by the Parties. References in these General Terms to the Transaction Agreement refers to both the Parties’ agreement setting out the business details and specific terms for the Transaction in question as well as these General Terms incorporated therein.
