These Software as a Service (SaaS) Terms of Service (“Terms” or this “Agreement”) govern the purchase of the license to the Software and access to Services by the Client and its Users (“you”, “your”, and terms of similar meaning) made available by MarketSyncer Inc. (“we”, “us”, “Provider” and terms of similar meaning) and its suppliers, made pursuant to an executed License and Services Agreement (defined below).
By executing a License and Services Agreement, or by accessing or using the Services, you agree to be bound by these Terms, and all terms, policies and guidelines incorporated by reference in these Terms. If a Client registers for a free trial of the Services, the applicable provisions of these Terms will also govern that free trial.
If the individual accepting this Agreement is accepting on behalf of a company or legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Terms, in which case the term “Client” or “User” (as the case may be) shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these Terms, such individual must not accept this Agreement and may not use the Services.
The License and Services Agreement is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the License and Services Agreement expressly conflict with these Terms, the conflicting provisions of the License and Services Agreement control and shall take precedence over the conflicting provisions of the Terms.
1. DEFINITIONS
1.1 “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, investigative, regulatory, or other, whether at Applicable Law, in equity, or otherwise.
1.2 “Additional Services” means any additional services to be provided by the Provider to the Client as more particularly described in additional Schedules to this Agreement.
1.3 “Administrator” means a person or persons assigned by the Client to have the authority to act as the administrator of the subscription on behalf of the Client.
1.4 “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over this Agreement or the supply or use of the Services.
1.5 “Business Day” means any day other than a Saturday, Sunday, or any other day on which banks located in the City of Toronto are authorized or required by Applicable Law to be closed for business.
1.6 “CASL” means any applicable federal, provincial and local laws, regulations and rules governing the sending of commercial electronic messages.
1.7 “Client” shall mean the individual or organization who is bound by the terms of the License and Services Agreement and these Terms and Conditions.
1.8 “Client Data” means any data or content inputted into the Software by the Client or any of its employees or Users and hosted on the servers of the Cloud Provider, including without limitation data submitted to the Services from Third-Party Platforms.
1.9 “Cloud Provider” has the meaning given in Section 5.1.
1.10“Fees” means the fees to be paid by the Client pursuant to the License and Services Agreement, these Terms and any applicable Schedules.
1.11 “License and Services Agreement” means (i) the MarketSyncer Software as a Service (SaaS) License and Services Agreement; or (ii) an online order specifying the Services to be provided hereunder, that is entered into between the Client and the Provider, including any Schedules, addenda and supplements thereto.
1.12 “Losses” mean all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, disbursements, and charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.13 “Personal Information” means any information relating to identifiable individuals, the collection, use or disclosure of which is regulated by Privacy Laws.
1.14 “Privacy Laws” means any applicable federal, provincial and local laws, regulations and rules governing the collection, use and disclosure of information relating to identifiable individuals, including the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection Act (British Columbia), the Personal Information Protection Act (Alberta), and any similar legislation enacted by any province or territory of Canada.
1.15 “Schedule” means a schedule, which is attached to these Terms or the License and Services Agreement, including without limitation, the Service Level Agreement and a Statement of Work, or which may be added hereafter by written agreement of the parties.
1.16 “Services” means the use of the Software, the Additional Services and other related services to be provided by the Provider to the Client pursuant to the License and Services Agreement.
1.17 “Software” means the MarketSyncer e-commerce management cloud-based platform licensed to the Client and the number of User licenses purchased by the Client pursuant to the terms of the License and Services Agreement.
1.18 “Term” shall have the meaning given in Section 12.1.
1.19 “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to the Provider.
1.20 “Third-Party Platform” means any software, software-as-a-service, data sources or other products or services not provided by the Provider that are integrated with or otherwise accessible through the Services.
1.21 “User” means an individual user who (i) is permitted to use the Software; and (ii) agreed to these Terms. Users may include employees or contractors of the Client and representatives of third-party vendors who are authorized to use the Services.
2. PRIVACY
2.1 Privacy Policy. Please refer to the privacy policy by clicking here (the “Privacy Policy”) for information on how we or our licensors collect, use and disclose your Personal Information. By using the Services, you agree to the use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.
3. USER ACCOUNTS
3.1 Provisioning and User Accounts. Upon agreeing to a License and Services Agreement, the initial Administrator of the Client will be permitted to register for a User account. The initial Administrator may add other Administrators and authorize Users subject to the limitations and additional terms described in the License and Services Agreement. The Initial Administrator and other Administrators shall be deemed to have the authority to manage (including adding and removing) Users. Administrators may deactivate any User if the Administrator wishes to terminate access to the Service for any User. Access to specific features of the Services are only available to specific user types.
3.2 Registration. Upon logging into the Software for the first time, the Administrators and Users will be prompted to register for a User account. Administrators and Users agree to: (a) provide accurate, current and complete information as may be prompted by any registration forms on the Software (“Registration Data”); (b) maintain the security of their password; (c) maintain and promptly update the Registration Data, and any other information the they provide to the Software, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information provided to Provider. The Client shall be responsible for all activity by Users on the Software, including the activity performed on the Software through the User accounts by an agent, representative, employee (including former employees who maintained access to the Services), or any other person acting on behalf of such User. It is the responsibility of the Client to delete User accounts or otherwise remove access to Users who should no longer be active (e.g. a User who is no longer an employee or contractor of the Client or a Vendor of the Client).
3.3 Free Trial. If a Client agrees to a free trial pursuant to a License and Services Agreement or registers for a free trial on the Provider’s website (“Free Trial”), the Provider will make the applicable Services available to the Client on a trial basis free of charge until the earlier of (a) the end of the Free Trial period for which the Client registered to use the applicable Services, or (b) the start date of the Initial Term under a License and Services Agreement. Additional trial terms and conditions may appear on the Free Trial registration web page. Any such additional terms and conditions are incorporated into these Terms by reference. Any Client Data accumulated by a User during a Free Trial will be permanently lost unless the User, on behalf of a Client, agrees to a License and Services Agreement or exports such Client Data before the end of the Free Trial period. Notwithstanding anything to the contrary in Sections 10 and 11, during the Free Trial, the Services are provided “as-is” without any warranty, support or service levels and the Provider shall have no indemnification obligations nor liability of any type with respect to the Services for the Trial Period unless such exclusion of liability is not enforceable under Applicable Law in which case the Provider’s liability with respect to those Services provided during the Free Trial shall not exceed $500.
3.4 Integration with Third Party Platforms. The Services may support integrations with certain Third-Party Platforms. The Client is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. The Client acknowledges and agrees that the Provider has no responsibility or liability for any Third-Party Platform, or how a Third-Party Platform uses or processes the Client Data after it is integrated with a Third-Party Platform. The Provider does not guarantee that the Services will maintain integrations with any Third-Party Platform, and the Provider may disable integrations of the Services with any Third-Party Platform at any time with or without notice to the Client.
5. HOSTING AND SUPPORT
5.1 Hosting. The Provider will cause the Software to be hosted on a cloud server maintained by a reputable third party provider (“Cloud Provider”). The Provider will be responsible for contracting with the Cloud Provider, and for paying all fees and charges of the Cloud Provider. All Client Data stored on the Services is located on servers operated by the Cloud Provider in the United States.
5.2 Services Support. The Services include the Provider’s standard customer support services in accordance with the Provider Service Level Agreement then in effect, a current copy of which is attached to these Terms and available here (the “Service Level Agreement”). The Provider may amend the Services Level Agreement from time to time in its sole discretion. The Client may purchase enhanced support services separately at the Provider’s then current rates.
5.3 Backups. The Provider will create a backup or cause its Cloud Provider to create a backup of the Software (including all Client Data) no less frequently than once every twenty-four (24) hours. Upon request from the Client and subject to additional charges, the Provider will provide the Client with a copy of the most recent backup available.
6 . ADDITIONAL SERVICES
6.1 General Procurement Agreement. In addition to the Services described in the License and Services Agreement, the Client and the Provider may sign one (1) or more Schedules with respect to Additional Services to be supplied by the Provider and acquired by the Client. Each Schedule shall contain a statement of the Additional Services to be provided pursuant to the Schedule, the applicable Fees, and the expectations of the parties as to the timing of performance of the Additional Services pursuant to such Schedule.
6.2 Order of Interpretation. Each Schedule is automatically deemed to include all the terms and conditions of the License and Services Agreement and these Terms; provided that whenever the provisions of a Schedule expressly conflict with the License and Services Agreement or these Terms, the agreements should be interpreted in the following order: (a) the conflicting provisions of the Schedule control and take precedence over the conflicting provisions of the License and Services Agreement and these Terms, then (b) the conflicting provisions of the License and Services Agreement shall take precedence over the conflicting provisions of these Terms.
6.3 Change Request. If the Client wishes at any time to request a change in the Additional Services under the License and Services Agreement or a particular Schedule, or if the Client requests the Provider to provide Additional Services outside the scope of the Additional Services that are specifically specified in the License and Services Agreement or a Schedule, the parties will work towards the execution of a new Schedule outlining the supplementary Additional Services.
6.4 Services. The Provider shall in all material respects perform the Services in accordance with the License and Services Agreement, these Terms and the applicable Schedule(s), and in a timely, diligent and professional manner. However, the timely and effective completion of the Services requires the successful co-operation of the parties and the timely performance by each of them of their obligations hereunder, including delivery by Client to Provider of information and materials and the timely performance by Client of the various activities, in each case either expressly or implicitly described in the License and Services Agreement or a Schedule, as the case may be.
7 . CLIENT REPRESENTATIONS AND WARRANTIES; CLIENT RESPONSIBILITIES
7.1 Client Representations and Warranties. The Client represents and warrants that the Client’s use of the Services and the use of the Services by the Client’s Users will (a) be consistent with this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement; and (b) comply with Applicable Law, including Privacy Laws and CASL. The Client shall be liable for the acts and omissions of any of its Users, directors, officers, employees, contractors, representatives or agents as if such act or omission were an act or omission of the Client.
7.2 Client Data. The Client is solely responsible for providing, updating, uploading, modifying and maintaining the Client Data as well as for the for the accuracy, content and legality of all such Client Data. The Client and Users represent and warrant to the Provider that the Client has all necessary rights, consents and permissions to collect, share and use all Client Data as contemplated in this Agreement and any applicable License and Services Agreement or Schedule, and that no Client Data will violate or infringe (i) any third party Intellectual Property Rights (as defined below) or, publicity, privacy, or other rights, or (ii) any Applicable Laws.
7.3 Responsibilities. The Client agrees (a) that it shall be responsible for providing and maintaining its own Internet access with the necessary bandwidth speeds as recommended by the Provider and all necessary telecommunications equipment, services, software and other materials (collectively, “Client Equipment”) at the Client’s location(s) necessary for accessing the Services; (b) the Client represents and warrants that it has the right to enter into this Agreement and to allow the Provider to perform the Services; and (c) the Client is solely responsible for providing, updating, uploading, modifying and maintaining the Client Data.
7.4 Client Indemnity Regarding Use of Services and Client Data. The Client shall be solely responsible for all inputs, selection and use of the Services and all Client Data or other data transmitted, received or created using the Services, even if transmitted, received or created by someone else, and the Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates harmless from any loss, damage or liability which may result therefrom or from any breach by the Client or its Users of this Agreement.
7.5 Acceptable Use of the Services. The Client and its Users may not:
(a) use, or encourage, promote, facilitate or instruct others to use the Services for any illegal, harmful or offensive use or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive;
(b) use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device;
(c) make network connections to any users, hosts, or networks unless the Client has permission to communicate with them; and/or
(d) distribute, publish, send or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising or solicitations (like ‘spam’), including commercial advertising and informational announcements.
The Provider reserves the right, but does not assume the obligation, to investigate any violation of this Section or misuse of the Services.
8 . FEES, EXPENSES AND PAYMENT
8.1 Fees. In consideration for the Services described herein, the Client shall pay to the Provider the Fees more particularly described in the License and Services Agreement and any applicable Schedules. Except as otherwise specified herein, in the License and Services Agreement or in the applicable Schedule, (i) the Fees are based on the Services purchased and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, and (iii) a subscription type (pertaining to certain User quantities) cannot be decreased during the relevant subscription term.
8.2 Invoices and Payments. The Provider shall invoice the Client, in advance, for the Services in accordance with the terms of the License and Services Agreement. The Client shall pay such invoices within five (5) calendar days of receipt (or such other time as specified in the License and Services Agreement or any Schedule). Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of two percent (2%) per month on overdue amounts and interest thereon, up to twenty-four percent (24%) per annum. The Client shall reimburse the Provider for all reasonable costs incurred by the Provider in collecting any late payments or interest, including legal fees, court costs, and collection agency fees.
8.3 Taxes. The Client shall be responsible for all applicable sales, goods and services, harmonized sales, value added, use, excise, other similar taxes, levies and charges not otherwise included in the Fees imposed by applicable tax authorities on the provision of Services hereunder. The Client shall pay to the Provider such taxes, levies and charges which the Provider is registered to charge and collect.
8.4 Reimbursable Expenses. The Client shall reimburse the Provider for out-of-pocket pre-approved expenses incurred by Provider in connection with performing the Services.
8.5 Fee Increases. The Provider may increase the Fees no more than once annually for any contract year after the first contract year of the Term by providing written notice to the Client at least sixty (60) calendar days before the commencement of that contract year, and the applicable Schedule or License and Services Agreement will be deemed amended accordingly.
8.6 Suspension of Service and Acceleration. If any charge owing by the Client under these Terms or any other agreement is thirty (30) days or more overdue, the Provider may, without limiting its other rights and remedies, accelerate the Client’s unpaid fee obligations under such agreements, so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full.
9. INTELLECTUAL PROPERTY, CLIENT DATA AND PRIVACY
9.1 Ownership of the Software. Except for any grant of licenses in this Agreement or as otherwise expressly provided in this Agreement, the Provider and its licensors, as applicable, shall retain all copyright, patent rights, trade secret rights, trademarks and other proprietary rights or interests (“Intellectual Property Rights”) in the Software. Nothing in this Agreement, the License and Services Agreement, or any Schedules shall be deemed to convey to the Client or any other party, any ownership right, in or to Software.
9.2 Ownership of Client Data. The Provider acknowledges and agrees that, as between the Parties, the Client is the sole and exclusive owner of the Client Data, and that no right or interest in the Client Data, other than pursuant to Section 9.3 of this Agreement, and will be collected, handled and used by the Provider only in compliance with the terms of this Agreement.
9.3 License from Client to Provider. The Client hereby grants to the Provider a non-exclusive, royalty-free, non-transferable, limited right to use during the Term, Client Data provided to the Provider solely to perform Services pursuant to this Agreement.
9.4 All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or in the License and Services Agreement or a Schedule, all Intellectual Property Rights are expressly reserved by the parties. The Client or the Provider, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by the Provider or the Client, as applicable, from time to time in order to give effect to the provisions of this Article.
9.5 Privacy Laws. The Client and authorized Users represent that (a) they have complied with all applicable Privacy Laws in connection with the collection, use and disclosure of Personal Information, and the provision of Personal Information to the Provider complies with all applicable Privacy Laws; and (b) all individuals to whom such Personal Information relates have consented to the Provider’s collection, use and disclosure of such Personal Information for the purposes disclosed in this Agreement or our Privacy Policy.
9.6 Third-Party Materials. The Software may contain Third-Party Materials, which may be subject to third party licenses and require notices and/or additional terms and conditions (“Third-Party Licenses”). These Third-Party Licenses are made a part of and incorporated into these Terms. By accepting these Terms, the Client and its Users are also accepting the Third-Party Licenses, if any, set forth therein. To view the Third-Party Licenses, please contact info@marketsyncer.com. The Client agrees that the Provider has no liability arising from such Third-Party Materials. The Provider does not monitor or have any control over, and makes no claim or representation regarding Third-Party Materials.
9.7 License by Client to Use Feedback. The Client grants the Provider a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Client or Users relating to the operation of the Software or the Services.
10 . DISCLAIMER AND LIMITATION OF LIABILITY
10.1 DISCLAIMER. EXCEPT AS EXPRESSLY SET OUT IN THE LICENSE AND SERVICES AGREEMENT, THE APPLICABLE SCHEDULE, OR THIS AGREEMENT, THE SERVICES ARE PROVIDED TO THE CLIENT AND AUTHORIZED USERS ON AN “AS IS” BASIS, WITHOUT WARRANTIES FROM THE PROVIDER OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THE PROVIDER MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (a) MEET THE CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE LICENSE AND SERVICES AGREEMENT; OR (e) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
10.2 No Indirect, Etc. Damages. Under no circumstances shall either party be liable to the other party for any claim for (i) indirect, special or consequential damages, (ii) compensation for loss of profits, anticipated revenue, savings or goodwill, or (iii) exemplary, aggravated or punitive damages howsoever incurred; in each case under any theory of law or equity, arising out of or in any way related to this Agreement or any Services, even if advised of the possibility thereof.
10.3 Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement, the liability of either party for any Action whether based on contract, tort (including negligence) or otherwise, or for Losses arising out of or resulting from this Agreement shall not exceed the Fees paid or payable by the Client to the Provider under this Agreement in the six (6) months preceding the Loss.
10.4 Reasonableness of Limitations. The Provider, the Client and Users agree that the limitations contained in this Section 10 are reasonable in scope and form an integral part of this Agreement.
11 . INDEMNIFICATION
11.1 Indemnity by the Client. The Client agrees to defend, indemnify and hold harmless the Provider, its directors, officers, employees, agents, contractors and affiliates, from and against any Losses that the Provider may incur as a result of or in connection with any Action by a third party that arises out of or relates to any: (a) Client Data, including any processing of Client Data by or on behalf of the Provider in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of the Client or any User, including the Provider’s compliance with any specifications or directions provided by or on behalf of the Client or any User to the extent prepared without any contribution by the Provider; (c) allegation of facts that, if true, would constitute the Client’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (d) negligence or more culpable act or omission (including recklessness or wilful misconduct) by the Client, any User or any third party on behalf of the Client or any User, in connection with this Agreement.
11.2 Indemnity by the Provider. The Provider shall indemnify, defend, and hold harmless the Client, its directors, officers, employees, agents, contractors and affiliates, from and against any Losses that the Client may incur as a result of or in connection with any Action by a third party that arises out of or relates to any allegation in such Action that the Client’s, or an authorized User’s use of the Services (excluding Client Data and Third-Party Materials) in compliance with this Agreement infringes Intellectual Property Rights protected in Canada. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (a) access to, or use of, the Services or Software in combination with any hardware, system, software, network, or other materials or service not provided or authorized writing by Provider; (b) modification of the Services or Software other than: (i) by or on behalf of the Provider; or (ii) with the Provider’s written approval in accordance with Provider’s written specification; or (c) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to the Client by or on behalf of Provider.
11.3 Mitigation. If any of the Services or Software are, or in the Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Rights, or if the Client’s or any User’s use of the Services or Software is enjoined or threatened to be enjoined, the Provider may, at its option and sole cost and expense: (a) obtain the right for the Client to continue to use the Services as contemplated by this Agreement; (b) modify or replace the Services, in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which case such modifications or replacements will constitute Services under this Agreement; or (c) by written notice to the Client, terminate this Agreement with respect to all or part of the Services and require the Client to immediately cease any use of the Services or any specified part or feature thereof, provided that, if such termination occurs before one (1) year after the Effective Date, subject to the Client’s compliance with its post-termination obligations, the Client will be entitled to a refund of any Fees paid in advance and not used.
11.4 THIS SECTION 11 SETS FORTH THE CLIENT’S SOLE REMEDIES AND THE PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND SOFTWARE) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY IP RIGHT.
12 . TERM
12.1 Term. The term of this Agreement (“Term”) shall commence on the Effective Date set out in the License and Services Agreement or the applicable Schedule and continue for length of time described in the License and Services Agreement or the applicable Schedule as the Initial Term (“Initial Term”). Thereafter, this Agreement will automatically renew for successive terms equal to the length of time of the Initial Term (“Renewal Terms”), unless terminated in accordance with this Agreement.
12.2 Termination.
(a) Prior to Renewal. Either party may terminate this Agreement by providing written notice to the other party at least (30) days prior written notice. For greater certainty, such notice may be given prior to the end of such current term, but will only take effect at the end of the then current term.
(b) Either party may terminate this Agreement if the other party materially breaches this Agreement, including any failure to make payments when due, and such other party fails to cure such breach in all material respects within thirty (30) days after being given notice of the breach from the non-breaching party.
(c) Either party may terminate this Agreement, upon written notice to the other party, if such other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party’s consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy, or if the other party becomes insolvent and cannot pay its debts when they are due.
12.3 Termination and Suspension of Users. Notwithstanding any provision of these Terms, the Provider reserves the right, in its sole discretion, without any notice or liability to the Client or any User, to (a) terminate a User’s license to use the Software, or any portion thereof; (b) block or prevent a User’s future access to and use of all or any portion of the Software; (c) change, suspend, or discontinue any aspect of the Software; and (d) impose limits on the Software.
12.4 Effect of Termination. If this Agreement is terminated in accordance with Section 12.2, then:
(a) Each party shall promptly deliver to the other party, all papers, databases, documents, software programs, and other tangible items (including copies) constituting the other party’s Confidential Information in its possession or under its control, or on request, destroy such materials and certify that it has done so;
(b) upon a request by the Client within thirty (30) days of termination, the Provider will within fifteen (15) days of such request, provide to the Client a copy of the Client Data in a format that is readable using commercially available third-party software and or the Software; and
(c) upon a request by the Client within thirty (30) days of termination, the Provider will delete and cause to be deleted all Client Data from all computer systems owned and controlled by the Provider.
13 . CONFIDENTIALITY
13.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information includes Client Data. The Provider’s Confidential Information includes the Software, the Services and the terms and conditions of this Agreement. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) is independently developed by the Receiving Party.
13.2 Protection of Confidential Information. The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
13.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.
13.4 Destruction. Each party, upon the request of the other party or within thirty (30) days after termination of this Agreement (whichever is earlier), agrees to return and cause its representatives to return, all copies of Confidential Information belonging to or provided by the other party or destroy such copies as directed by that party and certify their destruction.
13.5 Indemnity. Each party agrees to indemnify and hold the other party harmless from and against all loss or damage or any kind and nature suffered by the other party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Section 13.
14 . GENERAL
14.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. This Agreement shall be treated, in all respects, as an Ontario contract.
14.2 Survival. Any terms and conditions of this Agreement which by their nature extend beyond termination of this Agreement shall survive such termination. This includes, without limitation Section 9 (Intellectual Property, Client Data and Privacy) (but not section 9.3 (License from Client to Provider), Section 10 (Disclaimer and Limitation of Liability), Section 11 (Indemnification), Section 12.4 (Effect of Termination), Section 13 (Confidentiality) and applicable provisions of Section 14 (General).
14.3 Dispute Resolution.
(a) This Section 3 sets out the process (the “Dispute Resolution Process”) for resolving all disputes, issues, controversies, and/or claims arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement (“Disputes”).
(b) Either party may initiate the Dispute Resolution Process by sending a notice of a Dispute (a “Dispute Notice”) to the other Upon delivery of a Dispute Notice to either party, each party shall appoint a knowledgeable, responsible, non-lawyer, management representative to meet and negotiate in good faith with the representative of the other party in order to resolve the Dispute.
(c) All Disputes that are not resolved within thirty (30) days following delivery of a Dispute Notice shall be arbitrated and finally resolved, with no right of appeal, even on questions of law, pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be Toronto, Ontario, Canada. The language of the arbitration shall be English.
(d) Notwithstanding anything contained in the Agreement to the contrary, either party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction whenever the facts or circumstances would permit a party to seek such relief.
14.4 Relationship. The relationship between the Client and the Provider will at all times be one of independent contractor and nothing herein shall be construed as implying an employment, partnership, or joint venture relationship. The Provider is not an employee of the Client and is not entitled to any benefits that the Client may provide to its employees. Nothing herein shall be construed as empowering either party to act as a representative or agent of the other party. Neither party shall have the authority to enter into any contract, nor to assume any liability, on behalf of the other party, nor to bind or commit the other party in any manner, except as expressly provided in this Agreement.
14.5 Force Majeure. Except as expressly provided otherwise in this Agreement, dates and times by which the Client or the Provider is required to perform under this Agreement, the License and Services Agreement, or a Schedule (except for any payment obligation) will be postponed automatically to the extent and for the period of time that the Client or the Provider, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a party). The following events are deemed to be outside of a party’s reasonable control: acts of God, acts of government, acts of war, civil or military unrest, acts of public enemies, epidemics, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the fact and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonably foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis. The parties agree that an event shall not be considered to beyond reasonable control if a reasonable business person applying due diligence in the same or similar circumstances under the same or similar obligations as the provisions of the License and Services Agreement or Schedule would have put in place contingency plans to either materially mitigate or negate the effects of such event. A party seeking to rely on this Section must (i) notify the other party immediately and in detail of the anticipated or actual commencement of and the cause of postponement; (ii) notify the other party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and (iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available.
14.6 Non-Solicitation. During the Term and for a period of one (1) year following termination of this Agreement for any reason, neither party may, directly or indirectly, (a) solicit for employment any employee or independent contractor of the other party who was materially involved in the performance of this Agreement; or (b) induce or attempt to induce any employee or independent contractor of the other party who was materially involved in the performance of this Agreement to leave his or her employment or contract, as applicable, with such other party. The foregoing will not prevent either party from hiring any employee or independent contractor who responds to a job posting or advertisement that is not specifically targeted at such employee or independent contractor.
14.7 Currency. Unless otherwise specified in the License and Services Agreement, all references to amounts of money in this Agreement refer to Canadian Dollars (CDN) currency.
14.8 Notices. Notices that we give to you (other than notice of amendment of this Agreement), may be provided in any of the following ways. First, we may email the Administrator(s) at the contact information provided in the License and Services Agreement or any registration data. Second, we may post a notice on the Provider’s website. It is your responsibility to periodically review the Provider’s website for notices. The Client may provide notice to the Provider by (a) submitting a ticket through the helpdesk; or (b) e-mailing the Provider.
14.9 Successors and Assigns. This Agreement shall enure to the benefit of, and be binding on, the parties and their respective successors and permitted assigns. The Provider may assign this Agreement, in its sole discretion.
14.10 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
14.11 Entire Agreement. This Agreement, the License and Services Agreement and the Schedules constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.
14.12 Waiver. No term or provision of this Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
14.13 Fully Negotiated Agreement. The Client and the Provider acknowledge and agree that all of the provisions of this Agreement have been fully negotiated, that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favour of one party on the ground that such provision was drafted by the other party.
14.14 Language. The parties have required that this Agreement and all deeds, documents and notices relating to this Agreement be drawn up in the English language. Les parties aux présentes ont exigé que le présent contrat et tous autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.
14.15 Modification of Terms. The Provider may modify this Agreement at any time by (a) posting a notice on the Provider’s website or on the Software; or (b) by e-mailing the Administrator(s) of the Client. The Provider will also update the “Last Updated” date at the top of the Agreement. You are responsible for checking the Agreement whenever you access or use the Services. By continuing to access or use the Services, you are indicating that you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you must stop accessing and using the Services.
14.16 Questions. If you have any questions regarding these Terms or your use of the Services, please contact us here:
MarketSyncer Inc.