Terms of Service – Carbide Secure Inc.
These Terms of Service are between Carbide Secure Inc. (“Company”) and “Customer” as identified in an applicable Order Form or Statement of Work referencing these Terms of Service. The Order Forms or Statements of Work referencing these Terms of Service, and Company’s Privacy Policy located at https://carbidesecure.com/privacy-notice shall be incorporated herein by reference and are collectively referred to as the “Agreement”. Company and Customer may be referred to, individually, as a “Party”, and collectively as the “Parties”.
RECITALS:
- The Company provides an information security and privacy law compliance management software platform
- The Company provides information security professional services
- The Company is willing to be engaged by the Customer upon the terms and conditions herein contained
NOW THEREFORE, in consideration of the recitals, and of the terms, covenants, and conditions set forth herein, and for other good and valuable consideration, the receipt, sufficiency, and adequacy of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
DEFINITIONS
In this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
“Authorized Users” means the individuals or entities the Customer has expressly authorized to access and use the Software Platform, as set out in the applicable Order Form.
“Background Technology” means the Software Platform, Documentation, and all Intellectual Property owned, used, developed, acquired, or otherwise obtained by Company before, during, or after the Term.
“Confidential Information” means information of any kind (whether communicated in written form, orally, visually, demonstratively, technically, or by any other electronic form or other media, or committed to memory, and whether or not designated, marked, labeled or identified as proprietary) relating to the Agreement that is obtained by Receiving Party from Disclosing Party, including Customer Data and any information concerning business, affairs, operations, properties, assets (including, without limitation, the Offering), employees, customers, suppliers, contracts, prospects, liabilities, research, processes, business records, business plans, project lists, methods of operation, and any other documents or materials that is not readily available to the general public.
“Customer Data” means any text, images, documents, materials, and all other forms of data or information, including Personal Information, submitted to or shared with Company by Customer (via the Software Platform or otherwise) during the Term;
“Deliverable” means any tangible or intangible document, system, software, or material specifically produced, created, provided, delivered, or made available by or on behalf of the Company to or for the Customer under an SOW, other than the Documentation.
“Disclosing Party” means a Party that discloses Confidential Information under this Agreement.
“Documentation” means the user manuals and help guides provided to Customer, if any, describing the Software Platform, in printed or electronic form, as may be amended by Company from time to time, as well as any specifications outlined in this Agreement or an Order Form or SOW (as applicable).
“Fees” means the Professional Services Fees, and the Software Platform Fees.
“Intellectual Property” means all algorithms, application programming interfaces (APIs), concepts, Confidential Information, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, works of authorship, and other forms of technology.
“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
“Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious files, scripts, agents, or programs.
“Offering” means the Software Platform, and/or the Professional Services.
“Order Form” means a document executed by the Parties that specifies the Software Platform Tier (Package) to be provided to Customer, Subscription Period, Fees, number of Authorized Users, Professional Services, and any other commercial terms agreed to by the Parties.
“Personal Information” means information about an identifiable individual.
“Privacy Laws” means applicable laws and regulations regarding privacy, data protection, data security, communications secrecy, breach notification, or the processing of Personal Information, including, without limitation, the Personal Information Protection and Electronic Documents Act (Canada) and applicable Canadian provincial privacy legislation.
“Professional Services” means the services to be provided by Company to Customer (including but not limited to the development of Deliverables, advisory services, consulting, and penetration testing services), all as described in a SOW;
“Professional Services Fees” means the fees (as specified in an SOW executed by the Parties) payable by Customer to Company for Company’s performance of Professional Services. This includes both subscription-based fees and one-time fees.
“Receiving Party” means a Party that receives Confidential Information under this Agreement.
“Software Platform” means the Company’s enterprise-class information security platform.
“Software Platform Fees” means the fees (as specified in an Order Form executed by the Parties) payable by Customer to Company for the right to receive access to the Software Platform. This includes both subscription-based fees and one-time fees.
“SOW” means a Statement of Work for Professional Services executed by the Parties and includes commercial terms such as timelines, Fees, and anticipated completion dates.
“Third-party integration” means a third-party service (including any products or services offered by the third-party service) that Company may use as part of the Software Platform or incorporate into the Software Platform.
1. SOFTWARE PLATFORM
1.1 Provision of Software Platform. Subject to the terms herein, including but not limited to payment of all Software Platform Fees, Company grants Customer and Authorized Users access to the Software Platform during the Term. Customer’s right to access and use the Software Platform shall be in accordance with any additional conditions, restrictions, or parameters specified in the Order Form(s) executed by the Company and Customer.
1.2 Changes to Software Platform. Customer may upgrade their Software Platform by notifying Company. Company will prepare a detailed response regarding the upgrade request. If Customer accepts the response from Company, the Parties will agree to an amended Order Form to reflect the modifications. Upon execution of the amended Order Form, Company will provide the Software Platform in accordance with the updated Order Form.
1.3 Third-Party Integrations. Company may use Third-Party Integrations in connection with the Software Platform at Company’s discretion. In no event shall any use of or reference to any Third-Party Integration or third-party product or service be construed as an endorsement by Company of that Third-Party Integration or third-party product or service. Company is not responsible for the content of any products, services, or materials available to Customer through Third-Party Integrations. Any Third-Party Integration accessed, used, or relied on by Customer in connection with the Software Platform is subject to the terms and conditions of the applicable Third-Party Integration. Customer is solely responsible for determining and complying with those terms and conditions. Customer hereby releases Company from all liability and/damages that may arise from (i) use of or reliance on a Third-Party Integration in connection with the Software Platform; (ii) Customer’s receipt of products or services from any Third-Party Integration; or (iii) Customer’s reliance on the information or materials provided by any Third-Party Integration.
2. PROFESSIONAL SERVICES.
2.1 Professional Services. Professional Services will be defined in a SOW. Upon agreement of a SOW by the Parties and subject to the terms and conditions, including but not limited to the payment of all Professional Services Fees, Company will provide Professional Services for Customer as described in the SOW.
2.2 Changes. The Customer may propose changes to SOW by providing written notice to the Company (“Change Order”). Upon receipt of a Change Order, the Company shall use all reasonable efforts to provide a response within five (5) business days of receipt or such other longer time period as the Parties may mutually agree. The Company will prepare a detailed response regarding the estimated impact of implementing a Change Order. If the Customer accepts the response from the Company, the Parties will amend the SOW to reflect the Change Order modifications, and upon execution of the amended SOW, The Company will provide the Professional Services in accordance with the Change Order.
2.3 Company’s Obligations. Company shall perform Professional Services for Customer as described in any SOW agreed to in writing by the Parties. Company shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services. Customer acknowledges and agrees that Company may retain the services of independent consultants (“Subcontractors”) from time to time to perform or to assist Company in performing Professional Services under a SOW. Subcontractors shall remain under the direction and control of the Company.
2.4 Customer Obligations. The Customer shall provide timely performance of its obligations under any SOW as required for the Company to perform its obligations under any SOW. In support of such obligations, the Customer shall provide sufficiently qualified personnel who are capable of completing the Customer’s duties and tasks pursuant to any SOW. The Customer acknowledges and agrees that any delay on its part in the performance of its obligations will impact the Company’s performance of the Professional Services. The Customer understands and agrees that the Company’s ability to provide Professional Services as contemplated in the SOW is contingent on the Customer meeting its obligations set out in a SOW. The Customer acknowledges and agrees to ensure that all interactions with the Company’s staff, whether in person, written communication, or any other form, shall be conducted in a professional and respectful manner, fostering a positive working relationship between the parties.
2.5 Penetration Testing. Company offers penetration testing as an optional service available to Customers. Customer acknowledges that the purpose of penetration testing is to determine the weaknesses and vulnerabilities of Customer’s systems. To reduce the risk of corruption or loss to Customer Data or damage to Customer’s systems, Customer agrees that it will provide a test environment for Company to perform the penetration test. If Customer does not provide Company with a test environment or insists that the penetration test is performed on their production environment, Company takes no responsibility for any Customer Data corruption or loss or any damage to Customer’s systems.
3. RESPONSIBILITIES AND RESTRICTIONS.
3.1 Company Responsibilities. Company shall: (i) in addition to its confidentiality obligations hereunder, not use or modify Customer Data, or disclose Customer Data to anyone other than Customer (except to perform its obligations or exercise its rights under this Agreement); (ii) maintain the security and integrity of the Services and the Customer Data, and promptly notify Customer of any breach thereof by an unauthorized party; (iii) if Company receives a request for access to Personal Information from the individual whose Personal Information is stored by Company, promptly refer such requests to Customer for resolution; (iv) provide basic support to Customer, at no additional charge.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur under Authorized User accounts and for Authorized Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Company promptly of any such unauthorized access or use; and (iii) obtain all necessary consents and provide all necessary notices in accordance with all applicable law, including Privacy Laws, before sharing Customer Data with Company.
3.3 Restrictions. Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the Background Technology; (ii) modify, translate, or create derivative works based on Background Technology (except to the extent expressly permitted herein or agreed upon by the Parties in a SOW or Order Form); (iii) use Services for timesharing or service bureau purposes or otherwise use Services for the benefit of a third party; (iv) remove any proprietary notices or labels from Background Technology; (v) interfere with or disrupt the servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (vi) build a competitive product or service; or (vii) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services.
3.4 Audit Rights. Company shall have the right to use the Software Platform’s capabilities to confirm the number of Authorized Users using the Software Platform and Services and Customer’s compliance with this Agreement.
4. INTELLECTUAL PROPERTY RIGHTS.
4.1 Software Platform License Grant. During the Term, Company grants Customer and its Authorized Users a limited, worldwide, non-exclusive right to access and use the Software Platform via an internet website, mobile device, or any other device owned or controlled by Customer for its internal business use only. No rights are granted to Customer hereunder other than as expressly outlined in this Agreement.
4.2 Background Technology. Subject to the limited rights granted hereunder, Company reserves all Intellectual Property Rights related to the Background Technology and any enhancements and modifications to the Background Technology, regardless of (i) whether Customer contributed any such enhancements and/or modifications or (ii) whether any such enhancements and/or modifications were made during the Term. For clarity, Company’s templates and processes used to provide the Software Platform and Professional Services are deemed Background Technology, and nothing shall stop Company from using the same templates and processes for other customers.
4.3 Customer Data. Customer retains all Intellectual Property Rights and all other rights, title, and interest in and to any Customer Data. Customer Data is deemed Confidential Information under this Agreement. Company shall not access or process Customer Data except to respond to service or technical problems, at Customer’s request, or as necessary for the operation or improvement of the Software Platform, Professional Services or for billing purposes. Customer hereby grants Company a non-exclusive license for the Term (and for thirty (30) days thereafter) to use and otherwise use Customer Data as reasonably required to provide and improve the Service and to meet its obligations under the Agreement.
4.4 Deliverables. Except as expressly set forth herein or in the relevant SOW, all Intellectual Property Rights and all other rights, title, and interest in and to Deliverables shall vest in and be owned by Customer. Company hereby grants Customer a limited, non-exclusive, non-transferable license to any Background Technology incorporated in a Deliverable solely to the extent necessary for Customer to use the Deliverables for Customer’s business objectives.
4.5 Feedback. Company shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Offering and any of Company’s other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Offering.
5. TERM AND TERMINATION.
5.1 Term; Renewals. This Agreement shall commence on the effective date of the applicable Order Form or Statement of Work (“Effective Date”) and shall continue for a period of one (1) year unless terminated earlier in accordance with the terms herein (“Initial Term”). Upon expiration of the Initial Term, this Agreement shall renew automatically for additional one (1) year periods (each such renewal, a “Renewal Term” and together with the Initial Term, the “Term”), unless: (i) the Parties agree, in advance and in writing, to a different Renewal Term length, or (ii) Customer provides written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term. Company will provide Customer a notice of automatic renewal at least thirty (30) days prior to the termination of the existing Term. The Fees for any Renewal Term will be the Company’s then current Fees as published at https://carbidesecure.com/product/subscription-plans/ and the new Fees will be effective upon the first day of the Renewal Term.
5.2 Termination for Cause. Either Party may terminate this Agreement for cause: (i) upon fourteen (14) days written notice of a material breach to the other Party if such breach remains uncured at the expiration of such period by the breaching Party; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3 Effects of Termination. Upon termination of this Agreement for any reason: (i) Company’s obligations to provide Software Platform and/or Professional Services to Customer under this Agreement and any open Order Forms and/or SOWs shall immediately terminate; (ii) within fifteen (15) days of the day of termination, Customer shall pay to Company all Fees owing up until the end of the Term; (iii) except as otherwise expressly set forth herein or in the applicable Order Form or SOW, all rights and licenses granted by Company to Customer under this Agreement, including Customer’s access to Services, shall immediately cease; and (iv) the Parties shall each promptly return to the other, or destroy, at the other Party’s direction, the other Party’s Confidential Information in their respective possession. For clarity, regardless of the payment schedule agreed to by the Parties, Customer shall owe all outstanding Fees due and payable up to the end of the applicable Term.
5.4 Access to Customer Data following Termination. Within one (1) year following the effective date of termination or expiration of the Agreement, Customer shall have the ability to retrieve any Customer Data that the Customer uploaded to the Services. Such Customer Data may be irretrievably deleted by the Company after such one (1) year period has expired.
5.5 Survivability. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 3, 4.2, 4.5, 5.3-5.5, and 7-13.
6. FEES AND TAXES
Except as otherwise provided in an applicable Order Form or SOW, Fees will be governed by the following terms:
6.1 Fees. Customer shall pay Company the Fees all as specified in an applicable Order Form or SOW (as applicable) executed by the Parties. Unless stated otherwise, all Fees are payable in US dollars and are non-refundable. Company may collect and process Fees by sending Customer an invoice or by taking Customer’s credit card information and charging Fees monthly via pre-authorized credit card payments.
6.2 Invoicing and Payment. Customer will be charged Fees according to payment terms noted in the commercial terms in the applicable Order Form or SOW. If Customer is paying Fees on a monthly basis, they will make payment via monthly automatic credit card payments that will be charged on the date in the month that represents the start date of their Term for every calendar month during the Term. Customer is responsible for maintaining complete and accurate payment information with Company. If Customer’s payment information expires, is invalid, or is otherwise not able to be processed by Company, Customer must provide a valid payment method within thirty (30) days of a missed Fee payment in order to continue accessing and receiving access to the Software Platform without interruption.
6.3 Taxes. Unless otherwise stated, Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Company’s net income or property. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.4 Overdue Payments. Any Fees not received from Customer by the invoice due date (except for Fees then under reasonable and good faith dispute) may accrue, at Company’s discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such Fees were due until the date such Fees are paid.
6.5 Suspension of Access. If (i) any of Customer’s invoices are thirty (30) days or more overdue (except for Fees then under reasonable and good faith dispute); or (ii) Customer does not provide a valid payment method within the time period set out in Section 6.2 above, in addition to any of its other rights or remedies, Company reserves the right to suspend provision of the Software Platform to Customer or stop performing Professional Services without liability to Company, until all outstanding Fees are paid in full. Company will pursue payment of any unpaid Customer balance for the full Term via a third-party collections agency.
7. CONFIDENTIAL INFORMATION.
7.1 Restrictions and Obligations. Receiving Party agrees: (i) to take reasonable precautions to protect Confidential Information, including all precautions the Receiving Party employs with respect to its own Confidential Information, and in no case using less than a reasonable standard of care; (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information; (iii) not to reproduce, modify, reverse engineer, decompile, create other works from, or disassemble any Confidential Information without the prior written consent of the Disclosing Party; and (iv) to restrict access to the Confidential Information to those employees, officers, directors, subcontractors, affiliates, and agents (collectively, “Representatives”), if any, who have a need to have access to the Confidential Information and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement.
7.2 Exceptions and Permitted Disclosure. Disclosing Party agrees that Section 7.1 above shall not apply with respect to any Confidential Information that the Receiving Party can document: (i) is or becomes generally available to the public (through no improper action or inaction by the Receiving Party or any of its Representatives); (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party. The receiving Party may make disclosures required by law or court order provided the Receiving Party uses diligent, reasonable efforts to limit disclosure and obtain confidential treatment or a protective order, which allows the Disclosing Party to oppose such disclosure and participate in the proceeding.
7.3 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies may be inadequate.
8. WARRANTIES AND DISCLAIMERS.
8.1 Warranties. Each Party warrants: (i) it has the legal power to enter into this Agreement and perform its obligations herein; (ii) it has the legal rights to grant the Intellectual Property Rights and other rights and licenses as contemplated herein; and (iii) to comply with all applicable local, provincial, state, federal and foreign laws applicable to that Party, including Privacy Laws.
8.2 Software Platform Warranty. Company warrants: (i) to provide the Software Platform in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) that the Software Platform shall perform materially in accordance with Documentation and the requirements in this Agreement; and (iii) that the Software Platform will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in Customer Data or otherwise originating from Customer).
9. DISCLAIMER
9.1 COMPANY MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES, AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES, AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FOR CLARITY, COMPANY DOES NOT WARRANT THAT USE OR RELIANCE ON THE OFFERING BY CUSTOMER (I) WILL GUARANTEE AUDIT RESULTS; (II) WILL PROTECT CUSTOMER FROM ALL SECURITY RISKS AND THREATS; OR (III) GUARANTEES COMPLIANCE WITH ANY SECURITY STANDARDS, FRAMEWORKS, PRIVACY LAWS, OR OTHER LEGAL OR TECHNICAL INFORMATION SECURITY REQUIREMENTS.
10. LIMITATION OF LIABILITY
10.1 LIMITATION OF LIABILITY. EXCEPT FOR LOSSES ARISING AS A RESULT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) EACH PARTY’S LIABILITY FOR ANY LOSSES, LIABILITIES, DAMAGES, FINES, PENALTIES, DEFICIENCIES, COSTS OR EXPENSES, INCLUDING THE REASONABLE FEES AND REASONABLE EXPENSES OF LEGAL COUNSEL, ACCOUNTANTS OR OTHER EXPERTS AND PROFESSIONAL ADVISERS (COLLECTIVELY, “LOSSES”), ARISING FROM OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID IN THE PRIOR SIX MONTH PERIOD BY CUSTOMER TO COMPANY FOR THE PARTICULAR PART OF THE OFFERING TO WHICH SUCH CLAIMS RELATE; AND (II) REGARDLESS OF THE NATURE OF THE CLAIM OR THEORY OF LIABILITY (INCLUDING BREACH OF STATUTE, REGULATION OR CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (EVEN IF THE PARTY CAUSING SUCH LOSS OR DAMAGE HAS BEEN ADVISED OR HAD KNOWLEDGE OF THE POSSIBILITY OF SAME OR COULD HAVE REASONABLY FORESEEN SAME), INCLUDING LOST BUSINESS REVENUE, LOSS OF PROFITS OR FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS. THE PARTIES AGREE THAT SECTION 10 REPRESENTS A REASONABLE ALLOCATION OF RISK.
11. INDEMNIFICATION
11.1 Indemnification by Company. Subject to Section 11.3, Company will defend, indemnify, and hold Customer harmless from and against all third-party claims (and all resulting damages awarded) to the extent arising from infringement by the Software Platform of any Intellectual Property Rights of a third party (each such claim, an “IP Claim”). As conditions for such defense and indemnification by Company: (i) Customer shall notify Company promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Company sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with Company in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims, compromise the defense of any such IP Claims or make any admissions in respect thereto, without Company’s prior written consent.
11.2 Mitigation. If: (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, shall, at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Software Platform without infringement; (b) modify the Software Platform with equivalent or better functionality so that Customer’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, stop making the infringing aspect of the Software Platform available to Customer and refund Customer any prepaid Fees for any periods after termination, less any outstanding Fees owed by Customer to Company.
11.3 Company Indemnification Exclusions. The obligations in Sections 11.1 and 11.2 do not extend to (i) any IP Claim arising out of improper use of or reliance on the Software Platform or the combination of the Software Platform with other products, software or services not offered or supplied by Company; (ii) any IP Claim arising out of willful misconduct or fraudulent action of a third party; (iii) any IP Claim related to any Third Party Integration; or (iv) any IP Claim related to any use or exercise of any other right in respect to the Software Platform outside the scope of the rights granted in this Agreement.
11.4 Customer Indemnification. Customer shall, at its own expense, defend, indemnify and hold Company and its Representatives (collectively, “Company Indemnitees”) harmless against any and all claims, actions, allegations, damages, losses, liabilities and expenses (of whatever form or nature, including, without limitation, reasonable attorneys’ fees and all other expenses and costs of litigation), whether direct or indirect, that they or any related party may sustain, in violation of this Agreement, as a result of any acts, errors or omissions of Customer and its Representatives (collectively, “Indemnitors”), including but not limited to: (i) breach of any part of this Agreement; (ii) negligence or other tortious conduct; (iii) representations or statements not specifically authorized by Company herein or otherwise in writing; (iv) violation of any applicable law, regulation or order, including but not limited to breach of a third party’s Intellectual Property Rights or rights under Privacy Laws; or (v) Indemnitors’ misuse or alteration of Background Technology in violation of this Agreement (each a “Customer Claim”). Customer Claims will not include any claim that arises as a direct result of gross negligence, fraud, or willful misconduct of the Company or a claim for which the Company is responsible under Section 11.1. As conditions for such defense and indemnification by Customer, Company shall: (a) notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (b) give Customer sole control of the defense and settlement of such Customer Claims; (c) cooperate fully with Customer in the defense or settlement of such Customer Claims; and (d) not settle any Customer Claims, or compromise the defense of any such Customer Claims or make any admissions in respect thereto, without Customer’s written consent. For the purposes of this Section 11.4, Customer acknowledges that the Company is acting as agent and trustee of Company Indemnitees.
12. GOVERNING LAW
12.1 Governing Law. This Agreement shall be governed by the laws of the United States and Canada applicable therein. The Parties confirm that it is their wish that this Agreement, as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
12.2 Jurisdiction. The provincial and federal courts located in Nova Scotia, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts. Each Party also hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover reasonable costs and attorneys’ fees.
13. GENERAL
13.1 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. To the extent there are any conflicts or inconsistencies between this Agreement and Order Form or Statement of Work, the provisions of this Agreement will govern and control unless the Parties have expressly provided in such Order Form or Statement of Work that a specific provision in this Agreement is amended, in which case this Agreement will be so amended, but only with respect to such Order Form where applicable.
13.2 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the rest of this Agreement will otherwise remain in full force and effect.
13.3 Waivers. All waivers and modifications hereof must be in writing and signed by both Parties, except as otherwise provided herein. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
13.4 Relationship of the Parties. The Parties are independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Customer nor Company has any authority of any kind to bind the other Party in any respect whatsoever. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
13.5 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given (i) when received if personally delivered; (ii) when receipt is electronically confirmed if transmitted by email; (iii) the day after it is sent if sent for next day delivery by recognized overnight delivery service; and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. Notices shall be addressed to the Party’s signatory of this Agreement.
13.6 Publicity. Neither Party shall publicly refer to the other Party, including listing the other Party as a customer or partner, or using the other Party’s logo and name in marketing materials or on websites, without obtaining prior written consent from the other Party. This restriction also applies to press releases and any other public statements related to this Agreement.
13.7 Counterparts. This Agreement may be executed by facsimile or electronic mail and in counterparts, which, taken together, shall form one legal instrument.
13.8 Force Majeure. Neither Party shall be responsible for its failure to perform its obligations under this Agreement due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, health pandemics, strike or labor problems, or computer, telecommunications, internet service or hosting facility failures or delays not within a Party’s possession or reasonable control, provided that such Party gives the other Party prompt written notice and the reason for failing to meet its Agreement obligations.
Last Updated: November 2024