Last Modified: December 6, 2023
Fieldpoint Service Application Inc. (“Company”) requires users of its websites and Services, including any entity executing an order form (“Customer”) that references these terms to accept and adhere to these terms and conditions (“Agreement”). This Agreement governs the purchase and use of Company’s Software and Online Service (together, the “Services”) and is accepted by executing an order form that references this Agreement or by using or accessing Company’s Services. Company may update this Agreement from time to time and Customer will have 30 days to reject the updated terms by providing written notice to Company. If Customer continues to use or receive the Services following such period, the updated Agreement will be deemed accepted.
1. Order Form. Services will be ordered by Customer pursuant to executed order forms (each, an “Order Form”). Each Order Form will include the specific Services being ordered and the associated fees and any additional terms as applicable. Upon execution by both parties, each additional Order Form will be deemed an addendum hereto and will be subject to all of the terms and conditions herein. Any one of Customer’s subsidiaries or affiliates may also order Services under this Agreement by entering into an Order Form signed by such subsidiary or affiliate and Company and agreeing to be bound by the terms of this Agreement and such Order Form.
2.1. General. Minimum system requirements may affect Customer’s ability to use the Services. Customer may need to use certain third-party products, software and/or services to access and use the Services.
2.2. Rights for Use. Subject to timely payment of all applicable Fees and Customer’s compliance with the terms and conditions of this Agreement, Company hereby grants to Customer, during the Term (as defined below), as applicable, a non-exclusive, non-transferable, limited right to access and use the Services identified on an applicable Order Form or otherwise provided by Company.
2.3. On Premises Instance. Notwithstanding anything to the contrary, in the event Customer elects to install the Company software (“Software”) outside of Company’s online servers at any time, the additional terms and conditions set forth in Appendix A attached hereto shall apply in addition to, and not in lieu of (except as may be expressly set forth otherwise therein), the terms and conditions herein.
2.4. Accounts; Security. Access to or use of certain portions and features of the Services may require Customer to create an account (“Account”). Customer represents that all information provided by it is current, accurate, complete, and not misleading. Customer further warrants that it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Customer is entirely responsible for maintaining the confidentiality and security of its Account(s), including the password(s), and any other authentication credentials associated with Customer’s use of the Services. Accounts are not transferrable. Customer agrees to promptly notify Company if Customer becomes aware or suspects any unauthorized use of its accounts, including any unauthorized access or attempted access. Customer is responsible for all activities that occur under its Account(s). Further, Customer is the primary account holder and is responsible for all charges made by additional users added to the Account(s). A user license is required for each person utilizing Customer’s master account, or other data generated through the use of the Service (each a “User License”, and each user an “Authorized User”). Customer acknowledges and agrees that Customer may not develop, write or use any application programming interface, web service or other application or code to access, connect to or communicate with the Services and/or any databases or tabled contained therein without obtaining the necessary connector license(s) from Company upon payment of Company’s applicable licenses for same. Any sharing of such data to reduce the number of licenses required or sharing account information in any way is strictly prohibited. The number of User Licenses shall be as set forth in the applicable Order Form. Company may increase or decrease the number of User Licenses available to Customer. Any such increase to the number of User Licenses (and any applicable Fees) shall become effective upon notice from Company, and any such decrease to the number of User License shall become effective upon the first day of the then-following Renewal Term (as defined below).
2.4.1. Compliance. During the Term (as defined herein) and for a period of two years thereafter, Customer shall keep all usual and proper records relating to the Services and Customer’s use thereof. Company may, from time to time and upon reasonable prior written notice, conduct, or request that Customer conduct, an internal audit of all Services in use throughout Customer’s organization, comparing the number of licenses in use to the number of User Licenses issued to and/or paid for by Customer. With respect to any such audit by Company, Customer shall permit Company’s representative(s) access to its premises, records and computer systems for such audit purposes, which audit shall occur during Customer’s normal business hours and shall not unreasonably interfere with Customer’s normal business activities. By conducting any such audit, Company does not waive its rights to enforce the terms hereof or to protect Company’s intellectual property by any other means permitted by law. If the audit permitted herein reveals Customer’s use of licenses beyond those permitted by the terms hereof, Customer shall promptly (i) acquire from Company sufficient User Licenses at the then-applicable retain pricing to cover any such deficiency for Customer’s past and then-present use, and (ii) reimburse Company for the cost of such audit.
2.5. Restrictions on Use. In accessing or using the Services, Customer will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Services; (c) apply systems to extract or modify information in the Services using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) knowingly input or post through or to the Services any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others, (e) store data on the Services that is regulated by the HIPAA Privacy Rules, PIPEDA or the PCI Data Standards (f) input or transmit through or to the Services any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Services or grant unauthorized access thereto; (g) use or access the Services for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes; or (h) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (i) use the Services to compete with Company in any way; or (j) permit any third party to use or access the Services other than Authorized Users. Customer is responsible for ensuring that no multiplexing is in place to pool connections, reroute information, reduce the number of Users that directly or indirectly access or use the Services or attempt to disguise the number of Authorized Users.
2.6. Maintenance. Customer agrees that Company may install software updates, error corrections, and software upgrades to the Services as Company deems necessary from time to time. Following such installation, all such updates, error corrections and upgrades will be considered part of the Services for purposes of this Agreement.
2.7. Applicable Laws. Customer’s access to and use of the Service is subject to all applicable international, federal, state and local laws and regulations. Customer may not use the Service or any information data or Customer Content in violation of or to violate any law, rule or regulation. Ensuring Customer’s use of the Service is compliant with applicable laws and obtaining all required authorizations (including establishing all required terms and conditions) for payments processed via the Service is the responsibility of Customer.
2.8. Suspension of Service. Company has the right to immediately suspend the Service (a) in order to prevent damage to or degradation of the Service or unauthorized or non-compliant use or (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, or (c) if, following notice from Company, Customer has failed to pay any amounts due and owing. In the case of (a) or (b) Company will give Customer prior notice if reasonable and will ensure that the Service is restored as soon as possible after the event given rise to suspension has been resolved to Company’s reasonable satisfaction.
3. Data Licenses.
3.1. Customer Content.
As between Company and Customer, all title and intellectual property rights in and to all electronic data or information submitted to and stored in the Service that is owned by Customer (“Customer Content”) are owned by Customer. Customer acknowledges and agrees that in connection with the provision of the Services, Company may store and maintain Customer Content for a period of time consistent with Company’s standard business processes for the Service. Following expiration or termination of the Agreement or a Customer account, if applicable, Company may deactivate the applicable Customer account(s) and delete any data therein. Customer grants Company the right to host, use, process, display and transmit Customer Content to provide the Services pursuant to and in accordance with this Agreement and the applicable Order Form. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining all rights related to Customer Content required by Company to perform the Services.
3.2. Aggregated Data. Customer agrees that, subject to Company’s confidentiality obligations in this Agreement, Company may (a) capture data regarding the use of the Service by Customer, (b) collect metrics and data included in the Customer Content, and (c) aggregate and analyze any metrics and data collected pursuant to subsections (a) and/or (b) of this sentence (collectively, the “Aggregated Data”). Customer agrees that Company may use, reproduce, distribute and prepare derivative works from the Customer Content, solely as incorporated into Aggregated Data, provided that under no circumstances will Company use the Aggregated Data in a way that identifies Customer or its users as the source of the data.
4. Third Party Services. Except as expressly permitted in this Agreement or as otherwise agreed by Company in writing, Customer is prohibited from linking to the Service, framing of all or any portion of the Service, and using tools or functionality other than as provided by the Company to extract data from the Service. Company reserves the right to disable any unauthorized links or frames. Company will not be responsible and expressly disclaims any liability for any third party Services that Customer may use or connect to through the Service. If Customer activates any APIs or links to enable data sharing through the Service or directs Company to do so on its behalf, Customer thereby authorizes Company to send and receive Customer Content with any such activated third-party service and represents and warrants to Company that Customer has all appropriate right and title to grant such authorization. Customer will be solely responsible for any third-party fees related to the third-party Services and compliance with any applicable third-party service terms.
5. Intellectual Property.
5.1. Proprietary Rights. Company’s intellectual property, including without limitation the Service, its trademarks and copyrights and excluding any Customer Content contained therein, and any modification thereof, are and will remain the exclusive property of Company and its licensors. No licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement.
5.2. Feedback. Customer agrees that advice, feedback, criticism, or comments provided to Company related to the Service are given to Company and may be used by Company freely and without restriction and will not enable Customer to claim any interest, ownership or royalty in Company’s intellectual property, including, without limitation, any comments or feedback intended to improve the Services or Company’s other products. Notwithstanding anything to the contrary, Customer acknowledges and agrees that any customizations, changes, revisions or alterations made to the Services at the request of Customer or in connection with communications with Company are and always shall be the intellectual property of Company, and that any such improvements and/or alterations will not place any fiduciary or other obligation on Company, and Company is free to use any such improvements, customizations and alterations without additional compensation to Customer whatsoever.
6. Payment and Taxes.
6.1. Payment. Fees are set forth in the applicable Order Form (“Fees”). Set-up fees, if any, are due within 10 days of the date of the invoice therefor. Set-up fees, monthly subscription fees, transaction fees, and all other fees owed by Customer to Company will be automatically debited from the bank account, credit card, or other electronic payment method for which Customer has provided applicable account information (“Electronic Payment Information”). In the event Customer provides its Electronic Payment Information to Company, Customer authorizes Company to charge the credit card information provided, or debit the bank account information provided, as applicable, beginning as of the Effective Date and monthly thereafter (or as may be set forth otherwise in any Order Form), for all applicable Fees. Customer understands that this authorization will remain in effect until it is canceled in writing and agrees to notify Company in writing of any changes in Customer’s account information or termination of this authorization at least 15 days prior to the next billing date. If the payment date falls on a weekend or holiday, Customer understands that payments may be executed on the next business day. For ACH debits to a checking/savings account, Customer understands that because these are electronic transactions, these funds may be withdrawn from Customer’s account as of the payment date, and that it will have limited time to report and dispute errors. In the case the ACH transaction is returned for Non-Sufficient Funds (“NSF”) Customer understands that Company may, at its discretion, attempt to process the charge again within 30 days and agrees to an additional charge for each attempt returned NSF, which will be initiated as a separate transaction from the authorized payment. Customer has certified that the business bank account information provided is enabled for ACH transactions and agrees to reimburse Company for all penalties and fees incurred as a result of Customer’s bank rejecting ACH debits or credits as a result of the account not being properly configured for ACH transactions. Both parties agree to be bound by NACHA Operating Rules as they pertain to these transactions. Customer acknowledges that the origination of ACH transactions to its account must comply with the provisions of U.S. law. Customer agrees not to dispute these scheduled transactions with its bank or credit card company provided the transactions correspond to the terms indicated in this Agreement. In the event Customer does not provide its Electronic Payment Information or otherwise withdraws its consent to charge the credit card information provided, or debit the bank account information provided, as applicable, Company will send invoices to the contact(s) provided in an Order Form for each such Customer (or to the contact(s) otherwise provided by Customer for such payment purposes), and, unless otherwise set forth in the applicable Order Form, the Fees for each such Customer shall be due and payable within 30 days of receipt of the invoice therefor. Undisputed amounts that are past due will be subject to a monthly charge of 1.5% per month or the maximum rate permitted by law, whichever is less. Customer agrees to pay all reasonable costs of collection in the event any amount is not paid when due. Company, upon notice to Customer, which notice may be in the form of an invoice, will have the right to change Fees effective any time, which right will include, without limitation, the right to charge a Fee for new features or functions of the Service or for features or functions that have previously been offered at no charge. Unless otherwise noted in the Order Form, all Fees are payable in United States Dollars, and non-refundable.
6.2. Professional Services. Company may offer, and Customer may purchase (subject to availability), as a supplement to Customer’s purchase of the Services, hourly blocks of implementation, integration, customization and/or training sessions (each a “Block Session”). Customer hereby acknowledges and agrees that (i) any unused Block Sessions, or portion thereof, shall expire and be of no further effect or value as of the date that is twelve months after the date on which Customer purchased such Block Session(s), and (ii) any fees paid by Customer for Block Sessions which expired as set forth above shall be non-refundable to Customer. Notwithstanding anything herein to the contrary, Company shall have the right to adjust the pricing and details of the Block Sessions at any time, without notice to Customer; provided, however, any such changes shall not affect Block Sessions purchased prior thereto, unless mutually agreed upon by the parties.
6.3. Taxes. Company Fees do not include any local, state, national, federal or foreign taxes, tariffs, levies or duties of any nature including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes for which Customer is responsible under this Section. Company may invoice taxes to Customer and Customer will pay such taxes unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. Term and Termination.
7.1. Term. This Agreement will be effective as of the earlier of (i) Customer’s accessing the Services or (ii) the stated date in an initial Order Form (“Effective Date”) and remain in effect until (a) all executed Order Forms have expired or been terminated or (b) terminated by either party as permitted by this Agreement. Unless otherwise stated in the Order Form the initial Term will be for three years (the “Initial Term”). Thereafter, the Order Form will automatically renew for successive one-year periods (or as otherwise agreed to by the parties hereto in a mutually executed agreement or Order Form) (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party gives the other party not less than 90 days’ written notice of non-renewal prior to the end of the then-current Term.
7.2. Termination. Either party may terminate this Agreement at any time by providing not less than 90 days’ prior written notice to the other party (“Termination Notice”); provided, however, in the event Customer terminates this Agreement prior to the expiration of the Term, Customer shall pay all Fees accrued and unpaid as of the date of such termination, as well as all Fees for the remainder of the Term which would have accrued had Customer not elected to so terminate, which Fees Customer shall pay to Company within 30 days following Customer’s Termination Notice. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms, if the breaching party has failed to cure such breach (if curable) within 30 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property.
7.3. Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (a) Customer will immediately cease using the Service, (b) uninstall, delete and destroy all copies of any Software licensed under this Agreement, and destroy any associated media in Customer’s possession or control, (c) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential Information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement) and (d) any unpaid, undisputed amounts due through termination will become immediately due and payable.
7.4. Survival. Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Customer’s payment obligations under this Agreement.
8. Payment Processing and Related Services.
8.2. Fees. In addition to any fees Customer agrees to pay to a Third-Party Payment Processor, Customer will also pay fees to the Company for the Payment Processing Services. Fees for the Payment Processing Services are subject to change at the Company’s discretion. The standard fees for the Payment Processing Services are posted at https://fieldpoint.net/stripe-payments-cad/ (for Customers within Canada) and https://fieldpoint.net/stripe-payments-usd/ (for Customers within the United States) (the “Posted Fees”). If Customer’s fees for the Payment Processing Services are subject to an alternative arrangement to the Posted Fees, Company will provide Customer with such fee arrangement in writing.
8.3. Customer Financing. Company does not provide financing but may partner with a third party, such as Stripe, Inc., through which Customer may access financing offers. Customer acknowledges and agrees that such financing is provided solely by the third party providing the financing. Company is not liable for the acts or omissions of any third party providing financing to Customer.
9. Confidential Information.
9.1. Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The Service, all features and functions thereof and related pricing and product plans will be the Confidential Information of Company.
9.2. Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.
9.3. Exclusions. The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.
10. Disclaimers. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT COMPANY WILL CORRECT ALL ERRORS OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE SERVICE THAT ARISE FROM CUSTOMER CONTENT OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. COMPANY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY BE HELD LIABLE FOR PROBLEMS OR TECHNICAL MALFUNCTIONS OF ANY COMMUNICATION NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, OR SOFTWARE DUE TO TECHNICAL ISSUES OR TRAFFIC CONESTION ON THE INTERNET.
11. Limitation of Liability. IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO COMPANY IN THE 3 MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.
12. Indemnification. Customer agrees to defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates by a third party arising out of or related to the Customer Content or Customer’s use of the Service.
13. Publicity. Customer hereby consents to Company identifying Customer as a customer by name and logo in Company’s promotional materials, subject to Customer’s right to revoke such consent in writing at any time. Upon such revocation, Company will have 30 days to process Customer’s request.
14. Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Company. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.
15. Notices. Any notice required under this Agreement will be provided to the other party in writing. If Customer wishes to provide notice to Company, Customer will send notice via email to: email@example.com. Company will send notices to one or more contact(s) on file for Customer. Notices from Company, other than for a breach of this Agreement may be provided within the Service.
16. Attorney’s Fees. In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.
17. Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
18. No Third Party Beneficiaries. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
19. Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.
20. Force Majeure. Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.
21. Limitation of Claims. No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Customer more than six months after it first have actual knowledge of the facts giving rise to the cause of action.
22. FCPA Compliance. Customer shall, to the extent applicable, comply with the United Stated Foreign Corrupt Practices Act (as amended) and any analogous law or regulations existing in any other country or region, in connection with its performance under this Agreement. Customer shall not make any payment, either directly or indirectly, of money or other assets, including but not limited to compensation derived from this Agreement, to government or political party officials, candidates for government or political office, or representatives of other businesses or persons acting on behalf of the foregoing, that would violate any applicable law, rule or regulation.
23. Export Compliance. Customer must comply with applicable United States, foreign and international laws and regulations, including without limitation, the United States Export Administration Regulations and the United States Office of Foreign Asset Control regulations, and other anti-boycott and import regulations. Such export laws govern use of the Service including technical data and any Service deliverables provided under this Agreement and Customer agrees to comply with all such laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer is responsible for ensuring that no data, information, software programs and/or materials resulting from the Service (or direct product thereof) will be exported directly or indirectly in violation of these laws. Customer will indemnify Company for any violation by Customer of any applicable export controls or economic sanctions laws and regulations.
24. Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in all respects in accordance with the laws of the Province of Ontario, Canada, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive jurisdiction of the courts of the Province of Ontario. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT. All provisions of the United Nations Convention on Contracts for the international sale of goods are excluded from this Agreement in their entirety.
25. Severability, Waiver and Amendment. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.
26. Counterparts, Entire Agreement and Order of Precedence. This Agreement or any Order Form may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement, together with any Order Form(s) states the entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the terms and conditions of an Order Form; and (b) the terms and conditions of this Agreement. Any preprinted terms on any purchase order are hereby expressly rejected by Company and will be of no force or effect.
SOFTWARE INSTALLED/HOSTED BY CUSTOMER
This Appendix A shall apply if Customer installs the Software on either its own servers or in a private cloud environment of its choosing. In the event of any conflict between the terms in this Appendix A and the Agreement to which this is attached (the “Agreement”), the terms and conditions set forth in this Appendix A shall govern. Any capitalized terms used herein and not defined herein shall have the meanings ascribed to such terms in the Agreement.
1. Installation. Pursuant to the terms of this Appendix A and the Agreement to which these terms are attached, Customer may (i) install the Software in a single production environment on a single production server, (ii) install the Software on a single test server for the purpose of testing the Software, and (iii) make a reasonable number of copies (but in no event more than three without Company’s prior written consent) of the Software solely for back-up and disaster recovery purposes. Customer may use a third party (a “Private Cloud Provider”) to install and host the installed production environment of the Software, provided that such Private Cloud Provider agrees to all restrictions relating to the Software set out in this Appendix A and in the Agreement. Customer further acknowledges and agrees that it remains responsible for any breach by the Private Cloud Provider of the terms of this Appendix A and the Agreement and shall fully indemnify Company in respect of any such breach by Customer or any such Private Cloud Provider.
2. Protection of Products. Customer shall protect the Software from unauthorized copying or use and immediately notify Company if Customer becomes aware of any such authorized copying or use. If Company provides the Software, Customer shall implement and use, and shall not in any way disable, the license monitoring software provided by Company and shall provide the output files created by such software to Company upon written request.
3. Ownership. Except for the explicit non-exclusive rights granted to Customer in the Agreement, all right, title and interest in and to the Software, including, but not limited to, all trademarks, service marks, patents, copyright, trade secrets and other intellectual property rights therein or related thereto, are and shall be owned by Company and/or its licensors at all times.
4. Third Party Software. The Software may contain software which is licensed to Company by third party vendors and without limiting any other provisions of this Agreement: (a) ownership of any such third party software incorporated in the Software shall remain with the third party which licensed the same; (b) Customer may not use any such third party software on a stand-alone basis or use it to integrate it with any other software or device; and (c) Customer will not distribute any such third party software available with or incorporated in the Software in any manner. Customer is responsible for obtaining valid licenses for all other third party software required that is not specifically licensed or procured by Company including, but not limited to, all databases, data access drivers, report writers and operating systems.
5. Keys. Customer acknowledges that Software execution requires Customer to install an installation key supplied by Company that is designed to restrict the number of licensed Authorized Users (“Keys”). Keys issued by Company contain an expiry date after which the Software will not function; provided, however, and subject to Customer’s timely payment of all Fees, Company will issue new Keys. Customer further acknowledges that Customer is responsible for requesting, administering and managing such key(s).
6. Maintenance and Support Services. Support is included in their subscription fees. Any services required to install updates or provide services related to the Customer’s servers, hardware or network environment will be billed at the then-current rates as established by Company from time to time.
7. Customer Covenants. Customer agrees and acknowledges that it shall, at Customer’s sole cost and expense, be solely responsible for the following:
(a) controlling and directing the installation, implementation, operation and use of the Software, and taking appropriate precautions and exercising prudence in relation to all aspects of its implementation, testing and use of the Software and the outputs and results derived from its operation.
(b) choosing, procuring and regularly maintaining (at its sole expense) the operating environment and configuration for the Software and ensuring that such operating environment and configuration is regularly upgraded in accordance with its needs and Company’s recommendations and requirements, including, but not limited to, changes in the operating environment and configuration that may be required in order to install any update of the Software, if any, provided pursuant to Company’s software maintenance and support, which Company may provide from time to time.
(c) using the Software in accordance with all applicable laws and regulations in force from time to time and making, obtaining and maintaining in force all declarations, permits and authorizations that may be required in relation to the activities in connection with which the Software is used.
(d) taking reasonable steps to prevent loss of valuable files and other data, and implementing reasonable data loss prevention measures, including the appropriate back-up of information and materials as permitted by these Terms of Service so that Customer has ready access thereto in the event of loss, corruption or interruption.
Customer agrees and acknowledges that Customer is solely responsible and liable for Customer’s failure to continually fulfil (or procure the fulfilment by any of its personel, contractors, or agents) of any of the obligations set forth in this Section 7, and that Company shall have no liability whatsoever for Customer’s failure to so perform.