Motiv Studio Ltd.

Huddl Software As A Service (SAAS) Services Term and Conditions

These Software as a Service (SaaS) and Services Terms and Conditions ( “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 Motiv Studio Ltd. (“we”, “us”, “Provider” and terms of similar meaning) made pursuant to an executed Subscription Agreement (defined below).

By executing a Subscription 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.

The Subscription Agreement is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Subscription Agreement expressly conflict with these Terms, the conflicting provisions of the Subscription Agreement control and shall take precedence over the conflicting provisions of the Terms.

1. Definitions

• 1.1 “Account Owner” means an Administrator who has the authority to create, manage, and delete a Client Account.
• 1.2 “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, subject to Section 1.1.
• 1.3 “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.
• 1.4 “Business Day” means any day except Saturday, Sunday or any day on which banks are generally not open for business in the City of Calgary, Alberta.
• 1.5 “CASL” means any applicable federal, provincial and local laws, regulations and rules governing the sending of commercial electronic messages.
• 1.6 “Client” shall mean the individual or organization who is bound by the terms of the Subscription Agreement and these Terms.
• 1.7 “Client Data” means any data or content inputted into the Software by the Client or any of its Users and hosted on the servers of the Cloud Providers, which may include, without limitation, the Personal Information of a User or a customer of the Client. For clarity, Client Data includes Marks, as defined in Section 8.9.
• 1.8 “Cloud Providers” has the meaning given in Section 5.1.
• 1.9 “Fees” means the fees to be paid by the Client pursuant to the Subscription Agreement, these Terms and any applicable Schedules.
• 1.10 “Personal Information” means any information relating to identifiable individuals (including, without limitation, customers of the Client or a User), the collection, use or disclosure of which is regulated by Privacy Laws.
• 1.11 “Privacy Laws” means any applicable federal, provincial, local, and/or international 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 or internationally.
• 1.12 “Schedule” means a schedule, which is attached to this Agreement, the Subscription Agreement or which may be added hereafter by written agreement of the parties.
• 1.13 “Services” means the use of the Software and other related services to be provided by the Provider to the Client pursuant to the Subscription Agreement or any Schedule.
• 1.14 “Software” means the unified customer analytics software as a service (SaaS) platform, which includes a dashboard and individual analytics applications developed by the Provider and/or its subcontractors (if applicable), licensed to the Client pursuant to the terms of the Subscription Agreement.
• 1.15 “Subscription Agreement” means the Motiv Studio Ltd. Subscription Agreement to which this Agreement is attached that is entered into between the Client and the Provider, including any Schedules, addenda and supplements thereto.
• 1.16 “Term” shall have the meaning given in Section 11.1.
• 1.17 “User” means an individual user who (i) is permitted to use the Software; and (ii) agreed to these Terms. Users may include employees, agents, and/or independent contractors of the Client who are authorized to use the Services.
• 1.18 “Work Product” means any analytics reports, templates, and related materials, that the Client may generate during the course of the Services. For clarity, Work Product excludes the Client Data.

2. Privacy and Security

• 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 personal information, personally identifiable information and/or data in accordance with the Privacy Policy.

3. User Accounts

• 3.1 Provisioning and User Accounts. Upon agreeing to a Subscription Agreement, the Account Owner of the Client will be permitted to register for a Client account (“Client Account”) and User account (“User Account”). The Account Owner may add other Administrators and authorize Users subject to the limitations and additional terms described in the Subscription Agreement. The Account Owner shall be deemed to have the authority to manage the Client Account, and to manage (including adding and removing) Administrators and Users. Administrators will have the permissions specified for their respective role, which may include managing User Accounts, including without limitation deactivating any User Accounts if the Administrator wishes to terminate access to the Services for any User. Access to specific features of the Services may only be available to specific user types.
• 3.2 Registration. Upon logging into the Software for the first time, the Account Owner, Administrators, and Users will be prompted to register for a User Account. Account Owners, 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”) including the Client’s payment information; (b) maintain the security of their password; (c) maintain and promptly update the Registration Data, and any other information 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, including to replace Account Owners and Administrators, who should no longer be active (e.g. a User who is no longer an employee or contractor of the Client).

4.License to Software and License Restrictions

• 4.1 License to Software. Provider hereby grants to Client and authorized Administrators and Users a non-exclusive, non-transferable license to use the Software and solely permit the Client, Administrator(s), and Users to use the functionality contained within the Software for legitimate purposes during the Term.
• 4.2 License Restrictions. Except as set forth in this Agreement, the Subscription Agreement, any Schedule and to the extent contrary by Applicable Law: the Client and User may not (a) make or distribute copies of the Software; (b) alter, copy, merge, adapt, reformat, download, or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software through automated or other means to a human-perceivable form, including, without limitation, using the Services in conjunction with, or combining content therefrom with, content obtained through scraping or any other means outside the Services, or any part thereto; (c) sell, rent, share, lease, transfer, distribute, display, host or sublicense the Software (except as is incidental or necessary for the provision of the Software to Users); (d) modify the Software or create derivative works based upon the Software; provided however that the foregoing will not restrict Client’s rights to exploit any Client Data which may be incorporated into, reside in, or form a part of the Software; (e) use the Services in a manner that breaches the rights of any third party, any contract (including this Agreement or Third Party Licenses) or legal duty or violate any Applicable Law; (f) copy the Services or any part, feature, function or user interface thereof; (g) access or use the Services in any way for the purposes of competing with the Services or in order to build a competitive product or service; and/or (h) use the Services other than for its intended purposes, including, without limitation, in a manner that, as determined by the Provider in its sole discretion, constitutes excessive or abusive usage.

5. Hosting and Support

• 5.1 Hosting. The Provider will cause the Software to be hosted on a cloud server maintained by one or more reputable third-party providers (“Cloud Providers”). The Provider will be responsible for contracting with the Cloud Providers, provided that any fees and charges of the Cloud Providers related to hosting will be incurred by the Client, subject to the Subscription Agreement or a Schedule. All Client Data stored on the Services is located on servers operated by the Cloud Providers in the jurisdiction(s) selected by the Client on or before the Effective Date from the available options presented by the Provider at such time.
• 5.2 Support. Support Services are provided to the Client and its Users in accordance with the terms of the Provider’s Service Level Agreement, which shall be considered as a Schedule to this Agreement

6. Client Representations and Warranties and Responsibilities

• 6.1 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 any licenses provided; and (b) comply with Applicable Law, including Privacy Laws. The Client also represents and warrants that it has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. The Client shall be liable for the acts and omissions of any of its Users, Administrator(s), directors, officers, employees, contractors, representatives or agents as if such act or omission were an act or omission of the Client.
• 6.2 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 (if applicable) 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.
• 6.3 Required Programs and Hardware. The Client acknowledges that the performance of the Services may require that the Client obtain and/or install certain additional services, software programs or add-ons (“Required Programs”) and/or certain additional hardware (“Required Hardware”, collectively with Required Programs shall be referred to as “Required Programs and Hardware”). Unless indicated in a Schedule or the Subscription Agreement, the Client shall be responsible, at its own expense, to acquire, maintain, upgrade, and replace as necessary, the Required Programs and Hardware. The Client further acknowledges that the operation of the Required Programs and Hardware may require the Client’s own hardware to be of a sufficient quality, condition and repair, and the Client shall be responsible, at its sole expense, to maintain its hardware in the appropriate quality, condition and repair as necessary to operate the Required Programs and Hardware.
• 6.4 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 (including, without limitation a customer of the Client or a User), 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 Administrators and/or Users of this Agreement.
• 6.5 Acceptable Use of the Services. The Client and its Administrator(s) and/or Users may not:

  (a) use, or encourage, promote, facilitate or instruct others to use the Services for any illegal, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libelous, menacing, offensive or invasive of another person’s privacy use or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libelous, menacing, offensive or invasive of another person’s privacy;

  (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) interfere with or disrupt the Services or servers or networks connected to the Services or disobey any requirements, procedures, policies or regulations of networks connected to the Services or misuse the Software by introducing viruses, defects, trojans, worms, logic bombs or other material or item which is technologically harmful or destructive in nature;

  (d) attempt to gain unauthorized access to the Software, the server on which the Software is stored, or any server, computer or database connected to the Cloud Provider;

  (e) remove any legal, copyright, trademark or other proprietary rights notices contained in or on materials the Client or its Users receives or accesses pursuant to this Agreement;

  (f) make network connections to any users, hosts, or networks unless the Client has permission to communicate with them;

  (g) 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;

  (h) use the Services in any way so as to bring the Services, or any part thereof or any third-party related thereto, or the Provider into disrepute, and/or

  (i) breach any Applicable Law, including without limitation Privacy Laws, in their course of accessing and using the Software and the Services, including without limitation, illegal collection and/or use of Personal Information and/or improper use of consent management for the collection, use, and disclosure of Personal Information.

  The Provider reserves the right, but does not assume the obligation, to investigate any violation of this Section or misuse of the Services.

7. Fees, Expenses and Payment

• 7.1 Fees. In consideration for the Services described herein, the Client shall pay to the Provider the Fees more particularly described in the Subscription Agreement and any applicable Schedules. Except as otherwise specified herein or in the Subscription Agreement, (i) the Fees may be based on the Services purchased and the actual usage, and (ii) payment obligations are non-cancelable and Fees paid are non-refundable.
• 7.2 Change to Fees. The Provider reserves the right to introduce or change any Fees on or related to the Services from time to time, upon providing the Client with thirty (30) days advanced written notice, by e-mailing the Administrator(s) of the Client and/or by posting the updated Fees (or the pertinent calculations) on the Provider’s website or displaying a notification in the Software. If the Client does not accept the changed or new Fee, the Client must terminate these Terms or amend its Services prior to the end of the thirty (30) day period. After such period, if the Terms are not terminated or the Services are not amended, the Client or any of its Users continued use or purchase of the Services after the effective date of the change indicates the Client’s agreement with the new or changed Fees.
• 7.3 Invoices and Payments. Subject to the terms of the Subscription Agreement, the Provider shall invoice the Client for the Services on a monthly basis. The Client shall pay such invoices within five (5) calendar days of receipt (or such other time as specified in the Subscription Agreement or any Schedule). Subject to a Subscription Agreement, payments shall be made using a pre-authorized third-party payments service provider. The Client agrees to read, accept, and comply with any terms of service of such third-party payments provider selected by the Provider from time to time, at the Provider’s sole discretion. Subject to a Subscription Agreement, the Client is responsible for providing the Provider and/or the Provider’s third-party payments provider with adequate, correct and up-to-date information for any pre- authorized payment information that the Client wishes to be charged at for any Fees pursuant to these Terms, a Subscription Agreement, and/or any Schedule, including advising the Provider and/or the Provider’s third-party payments provider of any credit card numbers or such cards’ expiry date changes. Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of 3.5% per month on overdue amounts, up to 42% per annum.
• 7.4 Disputed Invoices. Subject to a Subscription Agreement or a Schedule, if the Client wishes to dispute an invoice, the Client shall notify the Provider in writing within four (4) calendar days from the date of receipt of such invoice. If the Client reasonably disputes any portion of an invoice, the Client must pay the undisputed portion of the invoice and submit a written notice of the claim with sufficient details of the amount in dispute and information necessary to identify the affected Service(s). If the dispute is resolved against the Client, the Client shall pay such amounts plus interest at the rate referenced in Section 7.3 within seven (7) days from the resolution date. If no such notice is served, such invoice shall be accepted as complete, correct and final by both parties.
• 7.5 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.
• 7.6 Suspension of Service and Acceleration of Fees. Subject to a Subscription Agreement, if the Client has preauthorized payments of any invoices pursuant to these Terms and/or a Subscription Agreement, and the payment information provided by the Client leads to a failure to charge the Client for any outstanding Fees, the Client shall be notified of the unsuccessful payments processing via email at the Client’s email address, and if such failure to complete payment of outstanding invoices continues for two (2) consecutive days from the date such invoices were due, the Provider may, without limiting the Provider’s other rights and remedies, accelerate the Client’s unpaid Fee obligations, so that all such obligations become immediately due and payable, and immediately suspend the Client Account the Services until such amounts are paid in full. .

8. Intellectual Property, Client Data and Privacy

• 8.1 Ownership of the Software and Work Product. 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 and the Work Product (which excludes Client Data). Nothing in this Agreement, the Subscription Agreement, or any Schedules shall be deemed to convey to the Client or any other party, any ownership right, in or to Software or the Work Product.
• 8.2 License from Provider to Client. Upon full payment of the applicable Fees, as further set out in the applicable Subscription Agreement, the Provider hereby grants to the Client and the Client Users (a) a non-exclusive, non-transferable, limited right to use the Software during the term of the Subscription Agreement; and (b) a non-exclusive perpetual license to use all other Work Product for legitimate internal business purposes in accordance with these Terms, the applicable Subscription Agreement and Applicable Law.
• 8.3 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 8.4 of this Agreement, and will be collected, handled and used by the Provider only in compliance with the terms of this Agreement.
• 8.4 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.
• 8.5 All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or in the Subscription 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.
• 8.6 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; (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; (c) they shall ensure that any Personal Information provided to the Provider is accurate, complete and up-to-date; and (d) if and to the extent that the Client or any of its authorized Users input Personal Information into the Software, such Client shall be deemed to be the controller of such Personal Information for the purposes of the applicable Privacy Laws, and shall be subject to all of the duties of a controller in respect of such Personal Information and to the patient to whom it relates under applicable Privacy Laws.
• 8.7 Third Party/Open Source Software and Sites. The Software may contain third party software and/or open source software, which may be subject to third party licenses and require notices and/or additional terms and conditions (“Third Party Licenses”). By accepting these Terms, the Client and its Users are also accepting the Third-Party Licenses, if any, set forth therein. These Third-Party Licenses are made a part of and incorporated into these Terms. To view the Third-Party Licenses, please contact team+huddl@motiv.digital The Software may also contain links to third-party websites (“Third-Party Sites”) and third-party content (“Third-Party Content”). The Client and each User may use such links to Third-Party Sites and any Third-Party Content or service provided there at their own risk. The Provider does not monitor or have any control over, and makes no claim or representation regarding, Third-Party Content or Third-Party Sites. A link to a Third-Party Site or Third-Party Content does not imply the Provider’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. The Provider accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content or Third-Party Sites. When a User leaves the Software, this Agreement no longer governs. The Client and each User are responsible for reviewing the applicable terms and policies, including, without limitation, privacy and data gathering practices of any Third-Party Site, and the Client and User should make whatever investigation he/she/it feels necessary or appropriate before proceeding with any transaction with any third party.
• 8.8 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.
• 8.9 Publicity. Subject to a Subscription Agreement or a Schedule, each of the Client and the Provider shall be permitted to use the other party’s trademarks (registered and unregistered), trade names, designs, logos and/or other indicia of origin (“Marks”) that are approved by such party for use on the other party’s website(s), social media accounts or in their retail location(s) (as applicable) solely for the purpose of indicating that the Client is a customer of the Provider. Further, the Provider’s Marks may appear on receipts or other documents printed or otherwise generated from the Software. The Client agrees that the Provider may also publicize the Client’s feedback about the Software and/or Services on the Provider’s website(s), social media accounts or in their retail location(s) (as applicable). For clarity, such feedback may be in a written form, audio, video, or other format.

9. Disclaimer and Limitation of Liability

• 9.1 Disclaimer. Except as set out in the Subscription Agreement, this Agreement or any Schedule, 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, unless otherwise specified in the applicable Subscription Agreement. The Provider does not warrant that the Services will be error-free or will operate without interruption.
• 9.2 No Indirect, Etc. Damages. Under no circumstances shall either party be liable to the other party for any claim for (i) indirect, incidental, special or consequential damages, (ii) loss or inaccuracy of data or cost of procurement of substitute goods, services or technology, (iii) 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, the Subscription Agreement or any Services, even if advised of the possibility thereof. The Provider shall not be responsible for any matter beyond its reasonable control.
• 9.3 Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement, including the indemnification obligations under Article 10, the liability of either party for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “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 three (3) months preceding the Loss.
• 9.4 Reasonableness of Limitations. The Provider, the Client and Users agree that the limitations contained in this Section 9 are reasonable in scope and form an integral part of this Agreement.

10. Indemnification

• 10.1 Indemnity by Client. 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, including all reasonable legal costs, that the Provider may incur as a result of or in connection with (i) any third party claim relating to or resulting from any negligence, willful misconduct or breach by the Client or its Users of the Client’s or its Users’ obligations under this Agreement, including its obligation to comply with all Applicable Law; and/or (ii) Client Data, including the use of Client Data by the Provider and/or any of its subcontractors, infringes or violates, any third party’s rights, including, without limitation, intellectual property, privacy and/or publicity rights
• 10.2 Indemnity by Provider. The Provider agrees to defend, indemnify and hold the Client, its Users, directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Client may incur as a result of or in connection with: any valid claim that the Software or any portion of it infringes the intellectual property rights of any third party (“IP Claim”), provided that the Provider’s indemnity obligations under this Section 10.2 shall not apply if: (i) the Services (or any portion thereof) was modified by the Client or any of its Users or any third party, but solely to the extent the IP Claim would have been avoided by not doing such modification; (ii) if the Services are used in combination with any other service, device, software or products, including, without limitation, third-party services, but solely to the extent that such IP Claim would have been avoided without such combination; and/or (iii) any IP Claim arising or related to, the Client Data or to any events giving rise to the Client’s indemnity obligations under Section 10.1 above. Without derogating from the foregoing defense and indemnification obligation, if the Provider believes that the Services, or any part thereof, may so infringe, then the Provider may in its sole discretion: (a) obtain (at no additional cost to the Client) the right to continue to use the Services; (b) replace or modify the allegedly infringing part of the Services so that it becomes non-infringing while giving substantially equivalent performance; or (c) if the Provider determines that the foregoing remedies are not reasonably available, then the Provider may require that use of the (allegedly) infringing Service (or part thereof) shall cease and in such an event, the Client shall receive a prorated refund of any Fees paid for the unused portion of the subscription term. THIS SECTION 10.2 STATES the PROVIDER’S SOLE AND ENTIRE LIABILITY AND THE CLIENT’S EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY THE PROVIDER AND/OR ITS SERVICES, SOFTWARE, AND ANY UNDERLYING TECHNOLOGY.
• 10.3 Indemnity Conditions. The defense and indemnification obligations of the indemnifying party under Article 10 are subject to: (i) the indemnified party shall promptly provide a written notice of the claim for which an indemnification is being sought, provided that such indemnitee’s failure to do so will not relieve the indemnifying party of its obligations under Article 10, except to the extent the indemnifying party’s defense is materially prejudiced thereby; (ii) the indemnifying party being given immediate and exclusive control over the defense and/or settlement of the claim, provided, however, that the indemnifying party shall not enter into any compromise or settlement of any such claim that requires any monetary obligation or admission of liability or any unreasonable responsibility or liability by an indemnitee without the prior written consent of the affected indemnitee, which shall not be unreasonably withheld or delayed; and (iii) the indemnified party providing reasonable cooperation and assistance, at the indemnifying party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying party’s defense of, or response to, such claim.

11. Term

• 11.1 Term. The term of this Agreement (“Term”) shall commence on the Effective Date or date of acceptance of these Terms set out in the Subscription Agreement, and will continue for the length of time described in the Subscription Agreement 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”) subject to the Subscription Agreement, unless terminated in accordance with this Agreement.
• 11.2 Termination.

  (a) Prior to Renewal. Except in the case of a month-to-month term, either party may terminate this Agreement by providing written notice to the other party at least (60) days prior to the end of the then current term, except as otherwise provided in a Subscription Agreement. For month-to-month terms, the Client may terminate this Agreement at any time by providing written notice to the Provider or indicating such termination on the Client Account, in which case the Fees will be prorated for the applicable time until such termination.

  (b) Breach. Either party may terminate these Terms and the Subscription Agreement if the other party materially breaches the any of the terms of these Terms and the Subscription Agreement, including any failure to make payments when due, and such other party fails to cure such breach in all material respects within fifteen (15) days after being given notice of the breach from the non-breaching party.

  (c) Insolvency. 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.

• 11.3 Early Termination. Subject to a Subscription Agreement, in case of an early termination pursuant to Section 11.2(b), the Client shall pay to the Provider any outstanding Fees and any invoices in accordance with these Terms.
• 11.4 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.
• 11.5 Effect of Termination. If this Agreement is terminated in accordance with Section 11.2, then:

(a) Upon request, 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 fifteen (15) 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, including .csv, .xls and .xlsx formats; and

(c) 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.

12. Confidentiality

• 12.1 Definition of Confidential Information. “Confidential Information” means all information, documentation, databases, software, designs, drawings, pictures or other images (whether still or moving), sounds and content 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 Work Product (excluding Client Data), 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 in the lawful possession of or 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, which independent development can be shown by written evidence.
• 12.2 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.
• 12.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, by any court of competent jurisdiction or by any regulatory or administrative body to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.
• 12.4 Destruction. The Receiving Party, upon the request of the Disclosing 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 Disclosing Party or destroy such copies as directed by the Disclosing Party and certify their destruction.
• 12.5 Indemnity. The Receiving Party agrees to indemnify and hold the Disclosing Party harmless from and against all loss or damage or any kind and nature suffered by the Disclosing Party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Section 12.

13. General

• 13.1 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.
• 13.2 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 8 (Intellectual Property, Client Data and Privacy) (but not section 8.4 (License from Client to Provider)), Section 9 (Disclaimer and Limitation of Liability), Section 10 (Indemnification), Section 11.5 (Effect of Termination), Section 12 (Confidentiality) and applicable provisions of Section 13 (General).
• 13.3 Dispute Resolution.

(a) This Section 13.3 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 party. 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 this 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.

• 13.4 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.
• 13.5 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 Subscription 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, pandemics, 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 Subscription 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.
• 13.6 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 employ 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.
• 13.7 Currency. Unless otherwise specified in the Subscription Agreement, all references to amounts of money in this Agreement refer to United States Dollar (USD) currency.
• 13.8 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 Subscription 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 e-mailing the Provider.
• 13.9 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, the Subscription Agreement or any Schedule or any obligation hereunder, in its sole discretion. The Client may not assign this Agreement, the Subscription Agreement or any Schedule without the prior written consent of the Provider.
• 13.10 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.
• 13.11 Entire Agreement. Subject to Section 7.2 and 13.15, these Terms, the Subscription 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.
• 13.12 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.
• 13.13 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 favor of one party on the ground that such provision was drafted by the other party.
• 13.14 Language. The parties have required that these Terms, the Subscription Agreement, and all deeds, documents and notices relating to the Subscription Agreement and these Terms 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.
• 13.15 Modification of Terms. The Provider may modify the Subscription Agreement and these Terms 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 this Agreement. You are responsible for checking this 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.
• 13.16 Questions. If you have any questions regarding these Terms or your use of the Services, please contact us here: