This Software as a Service (SaaS) Subscription Agreement, dated as of the subscription start date (this “Agreement”), is entered into between FastApps Inc, an Ontario corporation (“Provider”) and the user (“Customer”, and together with Provider, the “Parties”, and each, a “Party”).
WHEREAS, Customer wishes to procure from Provider the software services described herein, and Provider wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
“Access Credentials” means any user name, identification number, password, license or security key, security token, personal identification number (PIN) or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services.
“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 Law, in equity or otherwise.
“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, the first Person.
“Agreement” has the meaning set forth in the preamble/means this agreement and all schedules, exhibits, attachments or appendices specifically referenced herein or therein.
“Authorized User” means each of the individuals authorized to use the Hosted Services under Section 3.1.
“Availability Requirement” has the meaning set forth in Section 5.1.
“Available” means the Hosted Services are available for access and use by Customer and its Authorized Users over the internet and operating in material accordance with the Specifications.
“Backup Policy” has the meaning set forth in Section 6.
“Business Day” means any day other than a Saturday, Sunday or any other day on which commercial banks located in the City of Torontoare authorized or required by law to be closed for business.
“Confidential Information” has the meaning set forth in Section 10.1.
“Control” (and the terms “Controlled by” and “under common Control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Customer” has the meaning set forth in the preamble.
“Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Hosted Services. The customer acknowledges that they have been provided the consent of their users to have their data shared with third parties.
“Customer Failure” has the meaning set forth in Section 4.2.
“Customer Indemnitee” has the meaning set forth in Section 13.1.
“Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly by Customer or through the use of third-party services.
“Disclosing Party” means a party that discloses Confidential Information under this Agreement.
“Documentation” means any manuals, instructions or other documents or materials that Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Effective Date” means start date of service subscription.
“Exceptions” has the meaning set forth in Section 5.1.
“Fees” has the meaning set forth in Section 8.1.
“Force Majeure Event” has the meaning set forth in Section 15.1.
“Governmental Authority” means any federal, provincial, territorial, municipal or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, trojan horse, worm, backdoor, malware or other malicious computer code, the purpose or effect of which is to; (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any; (i) computer, software, firmware, hardware, system or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Hosted Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
“Hosted Services” has the meaning set forth in Section 2.1.
“HST” means harmonized sales tax, or goods and services tax, imposed under the HST Act (or any provincial or territorial legislation imposing sales tax, harmonized sales tax or goods and services tax).
“HST Act” means Part IX of the Excise Tax Act (Canada).
“Indemnitee” has the meaning set forth in Section 13.3.
“Indemnitor” has the meaning set forth in Section 13.3.
“Initial Term” has the meaning set forth in Section 11.1.
“IP Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trade-mark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection in any part of the world.
“Law” means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.
“Losses” mean all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including legal fees, disbursements and charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Party” (and the term “Parties”) has the meaning set forth in the preamble to this Agreement.
“Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer’s internal business operations.
“Person” means an individual, corporation, partnership, unlimited liability company, Governmental Authority, unincorporated organization, trust, association or any other entity.
“Personal Information” means any information that can identify a specific individual or from which a specific individual may be identified, contacted or located.
“Privacy and Security Policy” has the meaning set forth in Section 7.1.
“Process” means to take any action or perform any operation or set of operations that the Hosted Services are capable of taking or performing on any data, information or other content, and “Processing” and “Processed” have correlative meanings.
“Provider” has the meaning set forth in the preamble.
“Provider Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Hosted Services automatically with the passage of time or under the positive control of Provider or its designee.
“Provider Indemnitee” has the meaning set forth in Section 13.2.
“Provider Materials” means the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data, but do not include Customer Data.
“Provider Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Hosted Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
“Receiving Party” means a Party that receives or acquires Confidential Information directly or indirectly under this Agreement.
“Reimbursable Expenses” has the meaning set forth in Section 8.3.
“Renewal Term” has the meaning set forth in Section 11.2.
“Representatives” means, with respect to a party, that party, its Affiliates, and their respective employees, officersdirectors, consultants, agents, independent contractors, subcontractors and legal advisors.
“Resultant Data” means information, data and other content that is derived by or through the Hosted Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
“Scheduled Downtime” has the meaning set forth in Section 5.3.
“Service Allocation” has the meaning set forth in Section 3.3.
“Service Credit” has the meaning set forth in Section 5.2.
“Service Level Failure” means a material failure of the Hosted Services to meet the Availability Requirement.
“Service Manager” has the meaning set forth in Section 2.3.
“Service Period” has the meaning set forth in Section 5.1.
“Service Software” means the Provider software application or applications and any third-party or other software that Provider provides remote access to, and use of, as part of the Hosted Services, and all new versions, updates, revisions, improvements and modifications of the foregoing.
“Services” has the meaning set forth in Section 2.1.
“Specifications” means the specifications for the Services set forth in Schedule Band the Documentation.
“Subcontractor” has the meaning set forth in Section 2.5.
“Support Schedule” has the meaning set forth in Section 5.4.
“Support Services” has the meaning set forth in Section 5.4.
“Taxes” means any commodity tax, including sales, use, excise, value-added, goods and services tax, HST, provincial sales tax, consumption or other similar tax, including penalties and interest, imposed, levied or assessed by any Governmental Authority.
“Term” has the meaning set forth in Section 11.1/Section 11.2.
“Territory” means worldwide.
“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 Provider.
Subject to and conditional on compliance with the terms and conditions of this Agreement by Customer and its Authorized Users, during the Term, Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the services described in the attached Schedule A and this Agreement (collectively, the “Services”) in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users (collectively, the “Hosted Services”) in substantial conformity with the Specifications 24 hours per day, seven days per week, every day of the year, except for:
Except as otherwise expressly provided in this Agreement, as between the parties:
Each Party shall, throughout the Term, maintain within its organization a service manager to serve as such Party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services (each, a “Service Manager”). Each Service Manager shall be responsible for providing all day-to-day consents and approvals on behalf of such Party under this Agreement. Each Party shall ensure that its Service Manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Each Party shall use commercially reasonable efforts to maintain the same Service Manager in place throughout the Term. If either Party’s Service Manager ceases to be employed by such Party or such Party otherwise wishes to replace its Service Manager, such Party shall promptly name a new Service Manager by written notice to the other Party.
Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the cost efficiency or performance of the Services; or (b) to comply with applicable Law. Without limiting the foregoing, either Party may, at any time during the Term, request in writing changes to the Services.
Provider may, from time to time, in its discretion engage third parties to perform Services (each, a “Subcontractor”).
Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny access to or use of all or any part of the Services or Provider Materials by Customer, any Authorized User or any other Person, without incurring any resulting obligation or liability, if: (a) Provider receives a Governmental Order that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its discretion, that: (i) Customer or any Authorized User has failed to comply with, any term of this Agreement, accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit any of Provider’s other rights or remedies, whether at Law, in equity or under this Agreement.
Subject to and conditional on Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Provider hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Hosted Services and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and other than as may be expressly set forth in Section 16.8, non-transferable.
Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
Schedule A sets forth a schedule of Fees for designated levels of Hosted Service usage and data storage (each, a “Service Allocation”), beginning with the Fees payable by Customer for the levels of Hosted Service usage and data storage in effect as of the Effective Date. Provider will notify Customer in writing if Customer has reached 80% of its then current Service Allocation, and Customer may increase its Service Allocation and corresponding Fee obligations in accordance with Schedule A. If Customer exceeds its Service Allocation for any relevant period, Customer shall also pay to Provider the applicable excess usage and storage Fees set forth in Schedule A. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other Provider customers and agrees that:
Customer shall at all times during the Term:
Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
If Customer becomes aware of any actual or threatened activity prohibited by Section 3.2, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
Subject to the terms and conditions of this Agreement:
In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount of 10% of the monthly Fees for the Hosted Services due for the Service Period in which the Service Level Failure occurred (each, a “Service Credit”), subject to the following:
Any Service Credit payable to Customer under this Agreement will be issued to Customer. This Section 5.2 sets forth Provider’s sole obligation and liability, and Customer’s sole remedy, for any Service Level Failure.
Provider will use commercially reasonable efforts to; (a) schedule downtime for routine maintenance of the Hosted Services between the hours of (4) a.m. and (6) a.m., EST; and (b)] give Customer at least 72 hours prior notice of all scheduled outages of the Hosted Services (the “Scheduled Downtime”).
The Services include Provider’s standard customer support services (the “Support Services”) in accordance with the Provider service support schedule then in effect, available at https://fastapps.co/support.html (or a successor website address)] (the “Support Schedule”). Provider may amend the Support Schedule from time to time in its sole discretion.
The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
Provider will employ security measures in accordance with Provider’s security policy as amended from time to time, as available on Provider’s website at https://fastapps.co/security.html (or a successor website address) (the “Security Policy”).
Provider maintains a data breach plan in accordance with the criteria set forth in Provider’s Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach” (as defined in such plan).
Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: Personally sensitive information including but not limited to: credit card data, personal health information, sensitive military information, passport information (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Hosted Services, the Provider Systems or any Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Access Credentials if Customer and its Authorized Users; and (e) all access to and use of the Hosted Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.
Customer shall pay Provider the fees set forth in Schedule A (the “Fees”) in accordance with this Section 8.
Provider may increase Fees for any contract month after the first contract month of the Initial Term, including any contract month of any Renewal Term by providing written notice to Customer at least 60 calendar days before the commencement of that contract month, and Schedule A will be deemed amended accordingly.
Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services (the “Reimbursable Expenses”).
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all goods and services, harmonized sales, sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, provincial or territorial governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
Customer shall pay all Fees and Reimbursable Expenses within 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in Canadian or U.S. dollars by electronic funds transfer or credit card. Customer shall make payments to the address or account specified in Schedule A or such other address or account as Provider may specify in writing from time to time.
Except for invoiced payments that Customer has successfully disputed, if Customer fails to make any payment when due, then, in addition to all other remedies that may be available:
All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any set-off, recoupment, counterclaim, deduction, debit or withholding for any reason (other than Service Credits issued under Section 5.2or any deduction or withholding of tax as may be required by applicable Law).
All right, title and interest in and to the Services, Provider Materials and Third-Party Materials, including all IP Rights therein, are and will remain with Provider and the respective rights holders in the Third-Party Materials. Customer acknowledges and agrees that it has no right, license or authorization with respect to any of the Services, Provider Materials or Third-Party Materials (including any IP Rights therein) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.2 All other rights in and to the Services, Provider Materials and Third-Party Materials are expressly reserved by Provider and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all IP Rights relating thereto.
Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its Subcontractors and the Provider Personnel as are necessary or useful to perform the Services; and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.
In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 10.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including, information consisting of, or relating to, the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing and information with respect to which the Disclosing Party has contractual or other confidentiality obligationsin each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the terms of this Agreement are the Confidential Information of Provider.
Confidential Information does not include information thatthe Receiving Party can demonstrate by written or other documentary records:
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for 3 years:
The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier under any of this Agreement’s express provisions, will continue in effect until 1 month from such date (the “Initial Term”).
This Agreement will automatically on a monthly basis unless earlier terminated under this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least 30 days before the expiration of the then-current term (the “Renewal Term” and, collectively, together with the Initial Term, the “Term”).
In addition to any other express termination right set forth elsewhere in this Agreement:
Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.2, Section 10, Section 11.4, this Section 11.5, Section 12, Section 13, Section 14 and Section 16.
Each party represents and warrants to the other party that:
Provider represents, warrants and covenants to Customer that it will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
Customer represents, warrants and covenants to Provider that Customer owns or otherwise has, and will have, the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any IP Rights of any third party or violate any applicable Law.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE UNDER THIS AGREEMENT, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITYAND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (a) MEET CUSTOMER’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 SERVICESOR (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.
Provider shall indemnify, defend and hold harmless Customer from and against any and all Losses incurred by Customer arising out of or relating to any Action by a third party (other than an Affiliate of a Customer) alleging that Customer’s use of the Services (excluding Customer Data and Third-Party Materials) in compliance with this Agreement (including the Specifications) infringes an IP Right protected in Canada. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
Customer shall indemnify, defend and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and permitted assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or relate to any:
Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified under Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defence and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party IP Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
THIS SECTION 13 SETS FORTH CUSTOMER’S SOLE REMEDIES AND 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 PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY IP RIGHT.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3,IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a)LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES,OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS UNDER SECTION 5.2; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; (d) BREACH OF DATA OR SYSTEM SECURITY; OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED 50% OF SUBSCRIPTION COSTS, THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
In no event will Provider be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including:
(each of the foregoing, a “Force Majeure Event”).
A party whose performance is affected by a Force Majeure Event shall give notice to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance.
The non-affected party may terminate this Agreement if such failure or delay continues for a period of 14 days or more. Unless this Agreement is terminated in accordance with this Section 15.4, the Term of this Agreement shall be automatically extended by a period equal to the period of suspension.
Each Party shall, upon the reasonable request of the other Party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other party in any manner whatsoever.
Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement, or otherwise use the other Party’s trade-marks, trade dress, brand names, logos, corporate names and domain names or other similar designations of source, sponsorship, association or origin, in each case, without the prior written consent of the other Party.
Except as otherwise expressly set forth in this Agreement, All notices, requests, consents, claims, demands, waivers and other communications under this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email (in either case, with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses indicated below (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 16.4).
If to Provider:
Attention: Legal Officer
If to Customer:
Email: Registered account contact email in Providers system
For purposes of this Agreement: (a) the words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. Unless otherwise stated, all dollar amounts referred to in this Agreement are stated in Canadian currency.
The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
This Agreementconstitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any exhibit, schedule, attachment or appendix, the following order of precedence shall govern: (a) first, this Agreement, excluding its exhibits, schedules, attachments and appendices; (b) second, the exhibits, schedules, attachments and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider’s prior written consent, which consent Provider may give or withhold in its sole discretion. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 16.8 is void. This Agreement is binding upon and endures to the benefit of the Parties hereto and their respective permitted successors and assigns.
This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
This Agreement may only be amended, modified or supplemented by an agreement in writing signed byan authorized representative of each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Forum Selection. This Agreement and all exhibits and schedules attached hereto and all matters arising out of or relating to this Agreement are governed by and construed in accordance with the Laws of the province of Ontario and the federal laws of Canada applicable therein. Any Action arising out of or related to this Agreement or the licenses granted hereunder shall be instituted in the courts of the province of Ontario, and each Party irrevocably submits to the jurisdiction of such courts in any such Action. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any Action brought in any such court.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 10 or, in the case of Customer, Section 3.2, Section 4.3 or Section 7.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
The Parties confirm that it is their express wish that this Agreement, as well as any other documents related to this Agreement, including notices, schedules and authorizations, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté expresse que cette convention, de même que tous les documents s’y rattachant, y compris tous avis, annexes et autorisations s’y rattachant, soient rédigés en langue anglaise seulement.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the start date of the subscription and by choosing to agree to the terms when starting the subscription.
All payments shall be in Canadian dollars and made at Provider’s option by credit card or Interac e-Transferto firstname.lastname@example.org – FastApps Inc.
The software provides a system that collects data from internal and external data sources and aggregates this information for the purpose of understanding business performance. Data and charts may selectively be shared with 3rd parties that have been granted permission to access.
The software system is made available as a hosted service that can be accessed by the customers desktop, laptop or mobile device using internet browsing software or application software made available for installation on the customers device by the provider.
Documentation for each part of the system is made available within the system and can be found under the titles of ‘Help’ and ‘Documentation’.