These are the terms and conditions (the “Terms”) which apply to and govern the Company’s provision of the Services (as defined below) to any person, firm or corporation (the “Customer”) who/which buys and/or uses any of the Company’s service or services, software, web site or sites (individually a “Service” and collectively the “Services”).
Unless otherwise expressly agreed in writing by the Customer and the Company, subject to the terms set out in any agreement specifically negotiated and entered into between the Company and a particular customer, any agreement the Customer enters into for the purchase or use of a Service shall be deemed to be upon and subject to these Terms, which are incorporated by reference into any such agreement.
Wherever used in these Terms, the “Customer” includes the Customer’s subsidiaries and affiliates, and each party represents and warrants that it has the legal power and authority to enter into the Terms. No joint venture, partnership, employment, or agency relationship exists between the Customer and the Company as a result of the Terms or use of the Services.
Except for the payment provisions of the Terms, all of these Terms which apply to the Customer, also apply to the Potential Customer who registers for a Free Trial of the Services.
A Free Trial shall be available to the Potential Customer during, and the Potential Customer may use a Free Trial only for, the time period (the “Free Trial Period”) which the Company, from time to time, makes applicable to Free Trials. The Free Trial Period may be changed by the Company, and Free Trials may be suspended or terminated as an offering, without notice and at any time in the Company’s sole discretion.
Upon the expiration of the Potential Customer’s Free Trial Period, the Potential Customer must stop using the Services, unless the Potential Customer has exercised its option to purchase, and has purchased and paid for, the Services.
The Potential Customer may only maintain one Free Trial account. The Company reserves the right to refuse a Free Trial to the Potential Customer where, in the sole opinion of the Company, the Potential Customer is abusing the right to a Free Trial in any way which is to the detriment of the Company.
If/when a Potential Customer chooses to end the Free Trial Period, whether by purchasing the Services or by terminating the Free Trial, the applicable Free Trial Period for the Potential Customer will end, irrespective whether some time remains before that Free Trial Period expires on its terms. Note that if the Potential Customer chooses to terminate a Free Trial, or if the Potential Customer refuses to exercise its option to purchase and pay for the Services upon the expiration of the Free Trial Period, the Potential Customer may permanently lose content, features or capacity of the Potential Customer’s account, and the Company has no responsibility for any such loss.
During the applicable Subscription Term, the Company will host, maintain, update, and operate the Services with no less than the functionality and specifications as set out on the Website relating to the applicable Services. The Company grants the Customer a non-exclusive, worldwide, non-transferrable, license to access and use the Services in accordance with the Terms hereunder. The Customer agrees that it will only use the Services for the purposes permitted by (a) the Terms and (b) any applicable law and regulation in the relevant jurisdictions (including any laws regarding the export of data or software to and from any relevant countries).
The Customer may have one or more login account associated with the Services (each an “Individual Account”). As such, the Customer’s employees or affiliates are not permitted to share their username and/or password of an Individual Account with any other person, firm or corporation.
The Customer understands that it may not gain access to or attempt to gain access to any Services by any means other than through the interface that is provided by the Company unless it specifically has been permitted to do so in a separate agreement with the Company. The Customer specifically agrees not to gain access or attempt to gain access to any of the Services using or through any automated means including, without limitation, using web crawlers or scripts or otherwise. The Customer agrees not to willfully engage in any action or activity which interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
Unless and until the Customer has been specifically allowed to do so in a separate agreement with the Company, the Customer agrees with the Company that it will not reproduce, duplicate, copy, sell, transfer, trade, dispose of, exchange or resell a Service or the Services for any purpose.
The look, feel, and function of the Service is copyrighted. The Customer and/or the Potential Customer may not duplicate, copy, or reuse any portion of the Service, including without limitation, any visual design element or concept without express written permission from the Company. The Customer will not (and will not permit or direct any third party under its control to), directly or indirectly for whatever purpose, (a) analyze, reverse engineer, decompile, disassemble or otherwise attempt to discover any part or parts of the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”) for any purpose(s), (b) access the Services to monitor the Services’ availability, or functionality, or for any other benchmarking or competitive purpose(s), and/or (c) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted or authorized by the Company or applicable laws, rules and/or regulations).
The Customer acknowledges that the Company’s ability to deliver and to continue to deliver the Services in a timely manner may be dependent upon the Customer’s ongoing reasonable cooperation and assistance, as advised by the Company to the Customer. Accordingly, the Customer agrees to supply to the Company, on a timely basis, all reasonable information, material and assistance which the parties mutually agree is necessary for the Company to be able to deliver, or continue to deliver, as the case may be, the Services to the Customer including obtaining content and any additional information, material, or assistance identified by the Company and, if applicable, by the Customer.
In the case of information and/or assistance provided by the Company to the Customer, or by the Customer to the Company, each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information or materials not generally known or available outside the Disclosing Party’s business, and information and materials entrusted to the Disclosing Party in confidence by a third party, which include technical data, trade secrets, know-how, research, product or service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications, laboratory notebooks, processes, formulas, techniques, mask works, engineering designs and drawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees and consultants of the Disclosing Party lists of, or information relating to, suppliers and customers, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information disclosed by Disclosing Party that are marked, or by their nature and/or by the circumstances under which they are disclosed would indicate to a reasonable person that they are considered to be, confidential or proprietary (hereinafter collectively referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Company includes, without limitation, non-public information regarding features, functionality, and performance of the Services, and specifically excludes the terms of this Agreement. The Receiving Party agrees: (i) to protect the Discloser’s Proprietary Information against unauthorized access, use, disclosure or loss using at least the same degree of care that the Receiving Party uses to protect its own confidential information, but in no event less than a reasonable degree of care that includes at a minimum those technical, physical and administrative security and other safeguards and controls required by any applicable laws, (ii) not to use (except in the performance of the Services, rights under the Agreement, or as otherwise permitted herein) or divulge to any third person any such Proprietary Information other than to Permitted Parties (as defined below) who are bound by confidentiality obligations at least as restrictive as those set forth herein and (iii) promptly notify the Disclosing Party of any breach of Receiving Party’s obligations herein. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public through no fault of the Receiving Party, or (b) was lawfully in its possession or known by the Receiving Party prior to receipt from the Disclosing Party and is not known to be subject to an obligation of confidentiality, or (c) was rightfully disclosed to the Receiving Party without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) the Disclosing Party has expressly agreed in writing with the Receiving Party that the Receiving Party may release or make known. As used herein, “Permitted Parties” means Receiving Party and its respective employees, contractors, representatives, and professional advisors.
If Receiving Party becomes compelled by applicable law, rule and/or regulation, or by a court of competent jurisdiction (by applicable law or regulation or by deposition, interrogatory, request for documents, order, subpoena, civil investigative demand or other legal or judicial process) to disclose any of the Disclosing Party’s Proprietary Information, Receiving Party will provide Disclosing Party prompt prior written notice of such requirement (to the extent permissible) so that the Disclosing Party may seek a protective order or other appropriate remedy, and Receiving Party shall provide all assistance reasonably requested by Disclosing Party, at the Disclosing Party’s expense, in order for the Disclosing Party to seek such order or remedy. In the event that Disclosing Party does not obtain such protective order or other remedy, then the Receiving Party may disclose only that portion of the Proprietary Information or terms of the Agreement that Receiving Party’s counsel advises Receiving Party is legally required to disclose.
The Company shall maintain a data privacy and information security program that meets industry-accepted standards and practices, including physical, technical, administrative, and organizational safeguards that are designed to (a) ensure the security and confidentiality of the Customer Data, (b) protect against any anticipated threats or hazards to the security or integrity of the Customer Data, (c) protect against unauthorized disclosure, access to, or use of the Customer Data, (d) ensure the proper disposal of the Customer Data, and (e) ensure that access to the Customer Data is restricted to employees, agents, and contractors of the Company who have a business need to access the Customer Data, if any, and will comply with all of the foregoing.
If the Company discovers or is notified of any actual breach of security of the Customer Data (each a “Security Incident”), the Company will in the most expedient time possible under the circumstances and without unreasonable delay, within forty-eight (48) hours after the Company has become aware of the Security Incident, notify the Customer (a) of such Security Incident by email or phone, and (b) whether the Customer Data was in the Company or its third-party service provider’s possession at the time of the Security Incident. The Company shall promptly and at its sole cost (i) investigate, and take appropriate actions to remediate the effects of, and mitigate the risks associated with, the Security Incident, (ii) provide the Customer with a written report on the outcome of its investigation including any risk to the Customer or the Customer Data, the corrective action the Company will take, or has taken, to respond to the Security Incident, (iii) take all commercially reasonable actions to ensure the circumstances that gave rise to the Security Incident are resolved in the most expedient time possible under the circumstances, and (iv) provide the Customer with a final report once the Security Incident has been remedied, including steps taken to prevent a recurrence of the Security Incident. Company will provide updates to Customer during the investigation, remediation, mitigation, and resolution of the Security Incident (“Security Notifications”).
The Company agrees to grant the Customer with the right to determine (a) whether and when to provide notice of the Security Incident to any Data Subjects, regulators, law enforcement agencies, or others (“Incident Notifications”), and (b) the contents and delivery method of the Incident Notifications to individuals whose Personal Information was or may have been impacted by the Security Incident (“Data Subjects”). Notwithstanding the foregoing, in the event legal counsel to Company has advised Company that failure to disclose the Security Incident to a regulatory agency will cause the Company to be in violation of applicable law, Company may, with notice to Customer, disclose the occurrence of the Security Incident to the applicable regulatory agency, provided, however, that Company shall not disclose the name of Customer or any Data Subjects.
The Company shall promptly notify Customer when Company becomes the subject of any government, regulatory or other investigation or proceeding relating to its data privacy, security or handling practices, and Company shall train and take additional reasonable steps to ensure that persons employed or engaged by it with access to Customer Data are aware of and comply with the Agreement and applicable law, including Privacy and Data Protections.
“Personal Information” means any information Company collects or processes for Customer that (a) identifies or relates to an individual, or (b) the applicable laws otherwise define as protected personal information. “Privacy and Data Protections” means all applicable national, federal, state, provincial, and territorial laws and regulations relating to the processing, protection, or privacy of the Personal Information. “Process” or “processing” means any activity that involves the use of Personal Information or that the relevant Privacy and Data Protections may otherwise include in the definition of processing, processes, or process. It includes collecting, obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including, but not limited to, organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Information to third parties.
The Company or its licensors own and retain all right, title and interest in and to the Services and the software, applications, inventions or other technology developed in connection with the Services or support related to the Services, and all improvements, enhancements or modifications thereto, and all intellectual property rights related to any of the foregoing which subsist in the Services and wherever in the world those rights exist (excluding any Customer Data and/or Customer Proprietary Information contained therein).
“Customer Data” means all information, including, but not necessarily limited to, Personal Information, data, content, reports, or other materials stored in connection with, or input into or transmitted by or through, or prepared through the use of, or processed using the Services or provided by the Customer to the Company. Customer shall retain ownership of the entire right, title, and interest in and to Customer Data. However, Customer hereby grants to the Company a non-exclusive, limited, revocable, nontransferable right and license, solely during the Subscription Term, to (a) store, host, and reproduce the Customer Data solely for purposes of making the Services, as well as such Customer Data, available to Customer, and (b) to use Deidentified Data derived from Customer Data, in the form of Aggregate Data (together the “Permitted Purpose”). Company shall: (i) not process, access, or use Customer Data for any other purpose than the Permitted Purpose; (ii) not give any third-party access to Customer Data unless it receives prior written consent from Customer; (iii) process Customer Data in accordance with applicable law without limitation including Privacy and Data Protections. Company shall cease all use of Customer Data upon the earlier to occur of the expiration or termination of the Agreement and/or at Customer’s written request.
Company will own Aggregate Data. “Aggregate Data” means Deidentified Data derived from Customer Data that is combined with Deidentified Data of other customers of Company. “Deidentified Data” means data that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular individual or entity.
The Customer also has the right to electronically retrieve or delete Customer Data through the options provided by the Services. The Company has no responsibility to attempt to recover any Customer Data deleted by Customer.
In using the Services, the Customer agrees that it will not engage in any unauthorized use of any intellectual property (including without limitation any trade name, trademark, logo) of any other firm or corporation or use any such intellectual property in a way which does or may cause confusion as to the identity of the owner or authorized user of such intellectual property and which does not expressly provide any proper and required copyright and other attribution. The Company does not knowingly permit copyright infringing activities and infringement of intellectual property rights on its Website, or in the use of its Services and the Company will remove all content and third-party submissions if properly notified that such content or third-party submission infringes on another’s intellectual property rights in accordance with the Company’s Digital Millennium Copyright Act Policy available at https://cognota.wpengine.com/dmca-policy/ (“DMCA Policy”). The Customer agrees that the Company, in its sole discretion, has the right to refuse or remove any such infringing content which is available in relation to the Services, without any liability to the Customer for so doing. The Company does not endorse any third-party submission, or any opinion, recommendation, or advice expressed therein, and the Company expressly disclaims any and all liability in connection with third-party submissions.
The Software which the Customer uses may automatically update from time-to-time from the Company. These updates are designed to improve, enhance, and further develop the Services and may take any form, including without limitation, bug fixes, enhanced functions, new software modules, and completely new versions. Customer agrees to receive such updates (and permit the Company to deliver the updates to them) as part of their use of the Services.
The Company shall provide the Services using reasonable efforts consistent with prevailing industry standards, and in a manner which minimizes errors and interruptions with at least 99.5% availability excluding (a) time for scheduled maintenance or for unscheduled emergency maintenance, either by the Company or by third-party providers, or (b) because of other causes beyond the Company’s reasonable control. The Company shall use all commercially reasonable efforts to provide advance notice in writing or by e-mail to the Customer of any scheduled service disruption it experiences. In addition to the foregoing, the Services will conform in all respects with the services levels set forth in Exhibit A (“Service Levels”).
The service fees for the Services (the “Fees”) are billed to and payable by the Customer in the amounts set out in the applicable Order Form. The Order Form sets out the initial subscription term (“Initial Subscription Term”) for Services. Subject to earlier termination as provided in these Terms, the Initial Subscription Term shall be automatically renewed for successive additional periods of one (1) year (each a “Renewal Term”), unless Customer requests termination at least thirty (30) days prior to the end of the then-current term by written notice actually given to the Company. On each subsequent Renewal Term, the Fees will be subject to an automatic increase of five (5%) percent, or the maximum permitted by The Consumer Price Index, whichever is higher. The Initial Subscription Term and any Renewal Terms are the “Term”.
All Fees are exclusive of any applicable taxes whether national, federal, state, provincial, territorial, withholding and/or VAT taxes and applicable customs duties or tariffs (collectively “Taxes”). The Customer is responsible for the payment of all Taxes applicable to the Services. If the Company has the legal obligation to pay or collect any Taxes for which the Customer is responsible under the Terms, the Company will invoice the Customer for the applicable amount which the Customer hereby agrees to pay or reimburse to the Company forthwith unless the Customer provides the Company with a valid tax exemption certificate issued by the applicable and competent taxing authority.
Unless otherwise provided in the Order Form, the Company shall bill Customer through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company thirty (30) days after the mailing or transmission date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1% per month on any outstanding balance, or the maximum permitted by law, whichever is higher, plus all expenses of collection and may result in immediate termination by the Company of the Services.
Unless as otherwise described in the Terms, all transactions between the Company and the Customer are final and all payments by the Customer to the Company are final. Except as otherwise agreed to in writing, the Company does not issue refunds for transactions or Services that have been paid for by the Customer.
Either party may terminate the Agreement upon written notice, if (a) the other party materially breaches or fails to perform any of its obligations under the Agreement and has not cured the breach in accordance with the Agreement effective thirty (30) days after the breaching party’s receipt of written notice from the non-breaching party, or (b) it becomes insolvent or ceases to carry on business. In the case of any such termination, the Customer will pay the Company immediately and in full for the Services up to and including the last day on which the Services are provided to the Customer, and Company shall repay all Fees prepaid by Customer for periods after the date of termination, such amount to be calculated as [(total Fees paid)/number of day in period for which such Fees were paid) multiplied by (remaining days in the period for which such Fees were paid)] (the “Prorated Amount”) and all other prepaid Fees covering the remainder of the Subscription Term.
In addition to any other remedies it may have, the Company may terminate its agreement with the Customer, upon thirty (30) days written notice if the Company is required to do so by law (for example, if its provision of the Service or Services to the Customer of the Services is, or becomes, unlawful and the Company for any reason no longer can offer a Service or no longer can offer the Services in the Customer’s country of residence). In the case of any such termination, the Company will promptly provide a refund to the Customer of the Prorated Amount and all other prepaid Fees covering the remainder of the Term.
Upon termination, cancellation, or expiration of the Customer’s right to Services, if the Customer does not enter into a longer-term agreement, the Company will provide the Customer with the ability to export the Customer Data in any format which the Company’s Services support for thirty (30) days from the time of such termination, cancellation, or expiration, at no additional cost to the Customer. After those thirty (30) days, the Company shall delete all the Customer Data from the Company’s records and/or storage, and the Customer will not be able to access the Customer Data.
When the Agreement comes to an end, whether through cancellation, expiration or otherwise, all of the legal rights, obligations and liabilities that the Customer and the Company have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation. All sections of the Terms which create or impose rights to payment, confidentiality obligations, indemnification obligation, warranty disclaimers, and limitations of liability and any other rights or obligations, which by their nature are intended to survive, shall survive the termination, cancellation, or expiration of the Agreement.
SUBJECT TO ANY APPLICABLE LAW WHICH LIMITS THE COMPANY’S EXCLUSION OR LIMITATION OF WARRANTY OR LIABILITY FOR LOSSES, AND EXCEPT AS OTHERWISE SET FORTH HEREIN, THE CUSTOMER ACKNOWLEDGES TO AND AGREES WITH THE COMPANY THAT ITS USE OF THE SERVICE OR SERVICES IS AT ITS OWN AND SOLE RISK AND THAT COMPANY MAKES NO REPRESENTATION THAT THE SERVICES ARE FIT FOR THE CUSTOMER’S PURPOSES OR WILL MEET ITS REQUIREMENTS. EXCEPT AS SET OUT IN THE AGREEMENT, THE COMPANY AND ITS LICENSORS MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND AND EXPRESSLY DISCLAIM ALL WARRANTIES, GUARANTEES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES ARE OR WILL BE ERROR-FREE. THE CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE COMPANY TO ANY THIRD PARTY.
Compliance with Laws
Each party represents and warrants that in its performance under and in connection with the Agreement it will comply with all applicable laws, rules, and regulations, including export control laws, anti-bribery laws, Privacy and Data Protections, and anti-corruption laws.
Notwithstanding anything to the contrary, the Company will defend the Customer, its affiliates and their respective officers, directors, employees and contractors (collectively, the “Customer Indemnified Parties”) against any claim, demand, suit or proceeding made or brought against the Customer Indemnified Parties (a “Claim”) and will indemnify and hold the Customer Indemnified Parties harmless from any damages, liabilities, losses, costs and expenses (reasonable court costs and legal fees and related costs) incurred by a Customer Indemnified Party as a result of or in connection with a Claim, to the extent the Claim arises from (a) any use of Customer Data in a manner not expressly permitted under the Agreement, (b) a Security Incident, (c) Company’s or any of its service providers’ gross negligence or willful misconduct, or (d) breach of this Agreement. If the Company receives information about an infringement or misappropriation claim related to the Services, the Company may in its discretion promptly and at no cost to the Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching the Company’s warranties or degrading the Services in any material respect, (ii) obtain a license for the Customer’s continued use of the Services in accordance with the Terms, or if neither (i) or (ii) is available, (iii) terminate the Terms and refund the Customer the Prorated Amount and all other prepaid fees covering the remainder of the Subscription Term.
Customer will indemnify, defend and hold harmless the Company, its affiliates and their respective officers, directors, employees and contractors (collectively, the “Company Personnel”) from and against any cost, loss or damage (including reasonable court costs and legal fees and related costs) incurred by the Company to the extent arising out of a third-party claim that the Customer Data in the form provided by Customer and when used by Company as permitted under the Agreement infringes any intellectual property right of such third-party or constitutes misuse or misappropriation of a trade secret of such third-party.
A party seeking indemnification shall notify the indemnifying party of any actual or threatened suit, claim, demand, investigation, proceeding, cause of action, or action (collectively, “Action”) for which such party seeks indemnification under these Terms and shall give the indemnifying party authority, reasonable information, and assistance (at the indemnifying party’s expense) for the defense of such Action. The indemnifying party shall not, without the indemnified party’s prior written consent, not to be unreasonably withheld, delayed or conditioned, enter into any settlement agreement which (a) admits guilt, fraud, liability or wrongdoing of the indemnified party, (b) requires the indemnified party to commit to action or to refrain from action, or (c) provides for any damages other than money damages for which the indemnified party is indemnified. The indemnified party reserves the right to participate in the defense at its cost.
EXCEPT IN CONNECTION WITH (I) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (II) A PARTY’S BREACH OF ITS CONFIDENTIALITY, DATA SECURITY AND PRIVACY OBLIGATIONS HEREUNDER, (III) A PARTY’S BREACH OF THIS AGREEMENT, APPLICABLE LAWS, RULES OR REGULATIONS OR (IV) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER THE AGREEMENT, IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOST PROFITS OR REVENUES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES UNDER THE AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO COMPANY DURING THE TERM OF THE AGREEMENT.
In the event that the Company is impeded or prevented from continuing to offer a Service or the Services as planned or intended by any event of Force Majeure (which means an event beyond the claiming party’s reasonable control, including, but not limited to, fire, flood, natural or manmade epidemic or crisis, earthquake, explosion, labor dispute or strike, act of God or public enemy, satellite or equipment failure, riot or civil disturbance, terrorist threat or activity, war (declared or undeclared), any applicable national, federal, state, provincial, territorial or local government law, order or regulation, public health crisis, the order of any court or jurisdiction, or by any other cause not reasonably within the Company’s control, then the Company shall have the right to modify or suspend or terminate its offer of and provision of the affected Services, and the Company shall not be liable for any delay or failure to perform any of its obligations under these Terms if such delay or failure is due to causes beyond its control including, without limitation, the incidents and causes due to an event of Force Majeure.
The invalidity or unenforceability of any provision of this agreement shall not affect the validity or enforceability of any other provision. In the event that any provision is determined to be invalid or otherwise unenforceable or illegal, this Agreement shall otherwise remain in effect and shall be construed in accordance with its terms as if the invalid or illegal provision were not contained herein. Headings and captions are used this Agreement solely for ease of reference and shall not be deemed or considered to affect in any manner the meaning or intent of this Agreement or any provision thereof.
All issues and questions concerning the construction, validity, interpretation, and enforceability of this agreement or the rights and obligations as between the Customer and the Company in connection with the provision and use of the Services shall be governed by and construed and interpreted in accordance with the federal laws of Canada, and in accordance with the internal laws of the Province of Ontario, Canada, including the procedural provisions of those Ontario laws, without giving effect to any choice of law or conflict of law rules or provisions that would cause or bring about the application of any other jurisdiction’s laws. The Company and the Customer and all other parties hereby attorn to the jurisdiction of the courts of the Province of Ontario, sitting in the City of Toronto, Ontario, in respect of the determination of any matter or dispute arising under or in respect of the Terms and the Order Form and agree that any such determination shall be brought solely and exclusively before such courts in the Province of Ontario.
Any notice given under or pursuant to the Terms must be in writing, addressed to the party’s address set out in the Order Form, and will be deemed to have been duly given when actually received by the party to whom the notice is being given if personally delivered; when receipt by the party to whom the notice is being given is electronically confirmed as having been received, if transmitted by the party giving notice to the facsimile or e-mail address last known to the party giving the notice; if sent by the party giving the notice, for next day delivery by recognized overnight delivery service, on that next day; and upon actual receipt by the party to whom the notice is being given, if sent by certified or registered mail, return receipt requested.
The Company shall use best efforts to make Services accessible and operational twenty-four (24) hours a day, seven (7) days a week throughout the term of the Services. Customer understands from time to time that Services may be unavailable or inaccessible; however, Company shall meet or exceed a monthly availability of at least 99.5% (“Monthly Availability”).
The Company shall use best efforts to minimize any disruption, inaccessibility and/or inoperability of the Services during periods of scheduled and unscheduled downtime.
The Company shall provide notice to Customer within one (1) hour of an occurrence of unscheduled downtime that is anticipated to or does continue for more than one (1) hour.
The Company shall use best efforts to ensure system response time of an average of ten (10) seconds response time to execute a transaction for not less than 95% of all Services transactions during each month as measured by response time to execute a transaction.
The Company shall use best efforts to schedule scheduled downtime for routine maintenance, systems repair, and systems upgrades each week from 8:00AM Saturday to 8:00AM Sunday Eastern Time. Scheduled downtime shall not exceed eight (8) hours per month. The Company shall notify Customer of planned scheduled downtime, but in no event less than seventy-two (72) hours in advance. Company reserves the right to change scheduled downtime period with seventy-two (72) hours advance prior notice to Customer; provided, however, Company shall make every effort to schedule maintenance, systems repairs and systems upgrades during low utilization periods (typically nights, weekends and holiday periods) of the Services.
Service credits do not apply, and the Company is not responsible for, failure to meet level requirements if such failure results from:
(i) failure or deficient performance of power, equipment, services, or systems not provided by the Company or its subcontractors (inclusive of the Company’s hosting facility);
(ii) service interruptions, deficiencies, degradations or delays due to inability to access the internet;
(iii) misconduct and/or delays caused by the Customer and/or caused by Force Majeure.
Service Level Credits and Remedies
In the event availability is less than 99.5%, the Customer shall be entitled to a service level credit equal to a pro rata reduction of the Fees for Services during that time (“Service Level Credit”). All Service Level Credits shall be reflected in the next year’s billing for Annual Fees. If, however, the Customer decides not to renew the Service, the Company will apply the Service Level Credit towards an extension of the Initial Subscription Term. Service Level Credits will not entitle the Customer to any refund or other payment from the Company and may not be transferred or applied to any other account.
The Company shall provide maintenance and support services in support of the Services (collectively, “Support Services”). Services shall include Support Services and the Company shall not assess any additional fees, costs or charges for such Support Services. All Support Services are provided remotely by the Company.
The Company shall:
(a) correct all service errors, including providing defect repair, programming corrections, and remedial programing;
(b) provide unlimited live chat support and telephone support on an as needed basis between 9AM Monday and 5PM Friday Eastern Time.
(c) provide online access to technical support bulletins and other user support information and forums, to the full extent Company makes such resources available; and
(d) respond to and resolve support requests.
The Company shall maintain an incident tracking system of problems related to use of Services, and to measure performance of maintenance.
Support Services Response Times & Resolution Efforts
|Company Begins Resolution||Resolution Effort|
|Severity Level 1||Within one (1) hour of receipt of a service request regardless of day or time the service request is received.||Company to use best efforts (24 hours x 7 days a week) to verify, diagnose, replicate, and successfully fix the problem as quickly as possible.|
|Severity Level 2||Within twenty-four (24) hours of receipt of a service request regardless of the day or time the service request is received.||Company to use reasonable efforts during Company’s normal business hours to verify, diagnose, replicate, and fix the problem as quickly as possible.|
|Severity Level 3||Within two (2) Business Days of receipt of a service request.||Company will use reasonable efforts to verify, diagnose, replicate, and fix the problem within ninety (90) days or within the next software release (if software is the cause of the problem), whichever comes later.|
|Severity Level 4||Within five (5) Business Days of receipt of a service request.||Company will notify requestor regarding Company’s plans to correct a minor problem or not or to address requests for new features or suggestions for Services.|
Severity Level 1
Definition: A problem has been identified that makes the continued use of one or more functions impossible (or severely restricted) and prevents the Customer from continued production or severely risks critical business operations. Problem may cause loss of data or restrict data availability or cause significant financial impact to the Customer.
Severity Level 2
Definition: A problem has been identified that severely affects or restricts major functionality. The problem is of a time-sensitive nature and important to long term productivity but is not causing an immediate work stoppage. No workaround is available, and operation can continue in a restricted fashion.
Severity Level 3
Definition: (i) A minor problem that does not have a major effect on business operations, or (ii) A major problem for which a workaround acceptable to the Customer exists.
Severity Level 4
Definition: A minor condition or documentation error that has no significant effect on the Customer’s operations. Additional requests for new feature suggestions, which would result in new functionality.
Last Updated: February 11, 2022