End User Licensing Agreement (EULA) Terms
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
“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).