These Terms set out the basis upon which the Supplier will provide the Services. Please read these Terms carefully. By submitting an Offer or by accepting these Terms, whether as part of the Supplier’s online ordering process or otherwise, the Customer agrees to contract on the basis of these Terms and in doing so agrees that they prevail over any other terms which the Customer may seek to impose or introduce, including any terms set out in or relating to any purchase order, acceptance or acknowledgement issued by the Customer.
Any person submitting an Offer, or making any other representation, on behalf of the Customer represents and warrants that they have the legal right and authority to bind the Customer to the terms of the Agreement.
The Customer has evaluated the Services and the Software and satisfied itself as to their suitability, and confirms that it has not relied on any representation or statement other than as set out in the Agreement.
1.1 The following definitions and rules of interpretation apply in the Agreement.
Acceptable use policy: the Supplier’s acceptable use policy available at here.
Authorised Support Contacts: the agreed Customer personnel authorized to act as the Customer contact in connection with the provision of support services by the Supplier.
Authorised Users: those employees, agents and independent contractors of the Customer authorized to use the Subscription Services and the Documentation in accordance with this Agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in any province or territory of Canada.
Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Confidential Information: all and any confidential information (in whatever form) whether or not marked as such, including commercial, financial, marketing and technical information relating to the disclosing party’s business, services, products, clients, consultants, employees, suppliers, finances, proprietary computer software, website, know how, trade secrets, intellectual property, future product plans, future project plans and documentation in any form or medium whatsoever whether disclosed orally or in writing relating to any of the foregoing (including copies thereof).
Consultancy Fees: the fees payable in respect of the Consultancy Services, as set out in the Quotation.
Consultancy Services: those professional consultancy services (if any) which the Supplier agrees to provide to the Customer pursuant to an Order.
Current Version: the current or most recent release of the Software.
Customer: the legal person (whether company, partnership, individual or otherwise), identified in the Quotation, to whom the Services will be provided.
Customer Data: the data provided and/or inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services, excluding Third Party Content.
Data Protection Laws: the UK Data Protection Act 1998 as amended, replaced or superseded from time to time, including by the EU General Data Protection Regulation 2016/679 (‘GDPR’), when in force;
Data Protection Addendum: means the data protection addendum between the Supplier and the Customer dated on or around the date of this Agreement.
Documentation: the documentation made available to the Customer by the Supplier online via https://gvhelp.goldvisioncrm.com/gol/gold-vision-help or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date from which the Services will be provided, as set out in the Schedule.
Initial Subscription Term: the initial subscription term of the Agreement, as set out in the Quotation.
Fees: the fees payable for the Services and/or any other fees or charges payable under the Agreement, as set out in the Quotation.
Normal Business Hours: 9.00 am to 5.00 pm EDT, each Business Day.
Offer: the offer made by the Customer when it confirms acceptance (by any means, including by email) of a Quotation.
Order: the binding order formed when the Supplier accepts the Customer Offer, either expressly or by delivering Services pursuant to the Offer.
Quotation: a quotation for Services issued by the Supplier on these Terms.
Renewal period: the period described in clause 2.1.
Security & backup policy: the Supplier’s security policy available here.
Services: the Subscription Services and/or Consultancy Services, as applicable.
Service credits: the service credits which apply in respect of any failure to meet agreed Service Levels, as set out in the Service Level Agreement.
Service level agreement: the Supplier’s service level agreement available here.
Software: the software applications provided by the Supplier as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the Quotation.
Subscription Services: the subscription services to be provided by the Supplier, as described in the Order and/or the Documentation.
Subscription Term: the Initial Subscription Term together with any subsequent Renewal Periods.
Supplier: Esteiro Business Solutions Canada, Inc. (Company Reg. 975485-7), First Canadian Place, 100 King Street West, Suite 5700, Toronto, ON M5X 1C7, Canada.
Terms: these terms of service which shall include the Data Protection Addendum available here.
Third Party Content: third party content or offerings comprised in the Subscription Services, including third party mapping, geolocation and/or data enrichment data or content.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 3.1 and/or clause 5, which entitle Authorised Users to access and use the Subscription Services and the Documentation in accordance with the Agreement.
Virus: anything or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses, malware and other similar things or devices.
Any words following the terms ‘including’, ‘include’, ‘in particular’, ‘for example’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Commencement and term
2.1 The Agreement shall commence on the Effective Date and shall continue for the Initial Subscription Term. Thereafter, the Agreement shall automatically renew for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Subscription Term, in which case the Agreement shall terminate upon the expiry of the Initial Subscription Term; or
(b) otherwise terminated in accordance with the provisions of the Agreement.
2.2 During any Renewal Period, either party may terminate the Agreement at any time upon 90 days’ written notice.
2.3 The Agreement supersedes all and any previous agreements in relation to the Services, including any non-disclosure agreements entered into by the parties in anticipation of the provision of the Services.
3. Charges and payment
3.1 The Customer shall pay the Fees to the Supplier in accordance with this clause 3.
3.2 The Customer shall on or prior to the Effective Date provide to the Supplier valid, up-to-date and complete payment details (such as Paypal or direct debit details) or approved purchase order information acceptable to the Supplier and any other required valid, up-to-date and complete contact and billing details.
3.3 By entering into the Agreement, the Customer commits to pay the Subscription Fees for the Subscription Term.
3.4 The Supplier shall invoice the Customer on a monthly basis during the term of the Agreement and the Customer will pay all Fees in accordance with the terms set out in the applicable Quotation. Where the Customer provides payments details, the Supplier is hereby authorized to take payment upon issue of invoice.
3.5 If the Supplier has not received payment within 30 days after the due date the Supplier may, without prejudice to any other rights and remedies and without liability to the Customer, disable the Customer’s password, account and suspend access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
3.6 All amounts and Fees stated or referred to in the Agreement:
(a) shall be payable in Canadian Dollars (CAD) unless otherwise stated in the Quotation;
(b) are non-cancellable and non-refundable;
(c) are payable in full, net of all charges, and without set-off, deduction or withholding; and
(d) are exclusive of sales tax or other local taxes, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
3.7 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation or exceeds usage limits notified by the Supplier, the Customer shall pay the Supplier’s then current excess data storage or usage fees, details of which will be provided on request.
3.8 The Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 30 days’ prior notice to the Customer. All other Fees, including additional User Subscriptions and excess fees, may be increased at any time on 30 days’ notice.
4. User subscriptions
4.1 Subject to the Customer purchasing the User Subscriptions and complying with the terms of the Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Subscription Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
4.2 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Subscription Services and/or Documentation;
(c) each Authorised User shall keep a secure password for their use of the Subscription Services and Documentation, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep his password confidential;
(d) it shall permit the Supplier to audit the Subscription Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
(e) if any audit referred to in clause 4.2(d) reveals any breach of the Agreement by the Customer, then without prejudice to the Supplier’s other rights and remedies, the Customer shall promptly disable any passwords associated with unauthorised usage and within 10 Business Days of the date of the relevant audit, pay to the Supplier any underpaid Subscription Fees, as calculated in accordance with the Supplier’s standard pricing in force from time to time.
5. Additional services or user subscriptions
The Customer may request the provision of additional Services or Additional User Subscriptions at any time during the term of the Agreement. In response to such a request, the Supplier shall provide a Quotation. An Order will be formed only when the Supplier accepts the Offer and the additional Subscription Services or additional User Subscriptions (as applicable) will then be provided in accordance with the terms of the Agreement. Unless or until the Supplier accepts the Offer, the Supplier will be under no obligation to provide any additional Subscription Services, any additional User Subscriptions or incur any further or additional expense on behalf of the Customer.
6.1 The Supplier shall, during the Subscription Term, provide the Subscription Services and make available the Documentation to the Customer on and subject to the terms of the Agreement.
6.2 Subject to clauses 6.4 and 6.5 below, the Supplier shall use commercially reasonable endeavours to provide the Subscription Services in accordance with the Service Level Agreement, except for:
(a) planned maintenance notified by the Supplier; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 hours’ notice in advance.
6.3 The Customer shall, as its exclusive remedy, be entitled to Service Credits in respect of any failure to meet the Service Level Agreement.
6.5 Where the Customer elects to use a third party hosting provider in connection with the Subscription Services, the Customer (i) assumes full responsibility in that respect, including in relation to the suitability, standing, capability, performance and/or reliability of the Customer’s chosen hosting provider, (ii) agrees and accepts that the Supplier shall have no responsibility in respect of hosting and/or for any default or delay under this Agreement attributable to the said third party hosting, including responsibility for data backup, restoration or disaster recovery.
6.6 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services in respect of the Current Version of the Software during Normal Business Hours in accordance with the Supplier’s Service Level Agreement in effect at the time that the Services are provided. The said support will be provided only via the Authorised Support Contacts. The Supplier may amend the Service Level Agreement in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates. Any Supplier Software warranty obligations apply only to the Current Version.
6.7 The Supplier will provide the Consultancy Services in accordance with the Agreement and the applicable Order and in a timely and professional manner, using reasonable endeavours to comply with any time schedules agreed in writing with the Customer. Any such times or dates shall be estimates only and time for performance by the Supplier shall not be of the essence.
6.8 The Supplier will use reasonable endeavours to ensure the continuity of the Consultancy Services and of any personnel engaged in the Consultancy Services but shall have discretion to make changes if needed, in which event it shall provide replacements of similar status and experience.
6.9 The Supplier shall ensure that the personnel engaged in providing the Consultancy Services will be suitably qualified and have the necessary levels of skill and expertise required to carry out any tasks for which they are responsible.
6.10 The Supplier reserves the right to make changes to the Services which are necessary to comply with applicable law or safety requirements, or which do not materially affect the nature or quality of the Services, and shall notify the Customer of any such changes. Save as aforesaid, either party may request changes to the nature or scope of the Services, which shall be submitted in writing and be of sufficient detail to enable the other party to assess the scope and/or impact of the proposed change and any such change shall be effective only once agreed by both parties.
6.11 If any Consultancy Services are cancelled or postponed by the Customer, or its representative, prior to commencement the following fees are payable:
(a) If notification is given more than 5 working days before the scheduled Service start, there will be no cancellation charge.
(b) If notification is given more than 2, but less than 5 working days before the scheduled Service start, the cancellation charge will be 50% of the applicable Consultancy Services Fees.
(c) If notification is given less than 2 working days before the scheduled Service start the cancellation charge will be 100% of the applicable Consultancy Services Fees.
Once the Consultancy Services have commenced, the Consultancy Services may only be terminated in accordance with the Agreement.
7. Supplier’s obligations
7.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.
Such correction or substitution constitutes the Customer’s exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 The Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
7.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
8. Customer’s obligations
8.1 The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to the Agreement; and
(ii) such documents, data, drawings, plans, diagrams, designs, reports, specifications or other information as the Supplier may reasonably require;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services, and ensure all information is complete, true and accurate in all material respects;
(b) appoint a representative, who shall have the authority contractually to bind the Customer on matters relating to the Services;
(c) make available such Customer staff and applicable sub-contractors or suppliers (if any) as may be required for the Supplier to provide the Services and ensure that they co-operate fully with the Supplier in all material respects;
(d) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner;
(e) ensure that the Authorised Users use the Services and the Documentation in accordance with the Agreement (the Customer accepting responsibility for any Authorised User’s breach of the Agreement);
(f) obtain and maintain all licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Agreement, including the Services;
(g) ensure that its network, systems and (where applicable) hosting providers comply with the relevant specifications or standards provided by the Supplier from time to time;
(h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or
damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
(i) comply with all applicable laws and regulations with respect to its activities under the Agreement.
8.2 The Customer acknowledges that the Supplier’s ability to provide the Services depends on the Customer satisfactorily complying with the obligations stated in this Agreement and that should the Customer delay or fail to perform any such obligations then the Supplier will not be liable in any way for any delay, loss or damage, cost increase or other consequences arising from such failure.
8.3 The Customer shall not access, store, distribute or transmit any Viruses, or breach the terms of the Supplier’s Acceptable Use Policy. The Customer shall not except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Agreement,
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(c) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(d) use the Services and/or Documentation to provide services to third parties, unless agreed in writing beforehand; or
(e) subject to clause 24.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services and/or Documentation available to any third party except the Authorised Users, or
(f) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 8.
8.4The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, shall promptly notify the Supplier.
8.5 The rights provided under this clause 8 are granted to the Customer only, and unless otherwise agreed in writing by the Supplier shall not be considered granted to any subsidiary or holding company of the Customer or any associated or affiliated company.
9. Customer data
9.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
9.2 The Customer warrants that it owns all rights in the Customer Data and that the Supplier’s use and processing of the Customer Data in accordance with the Agreement will not infringe third party rights. The Customer hereby grants the Supplier the non-exclusive worldwide right and licence to process, copy, store, transmit display, print, view and otherwise use the Customer Data to the extent required for the provision of the Services.
9.4 The Supplier shall follow its archiving procedures for Customer Data as set out in its Security & Back-Up Policy, as such document may be amended by the Supplier from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with its Security & Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up). The Customer acknowledges and accepts that more regular backups of Customer Data may be achieved by: (i) making its own backups of the Customer Data at any time, which can be done easily and quickly, or (ii) requesting enhanced data backup services from the Supplier, details of which are available upon request. The Supplier’s liability in relation to any data loss or corruption will be limited to that resulting from its failure to comply with any contractual commitments given regarding data backup and the Supplier does not otherwise accept responsibility for data loss or damage of any kind.
9.5 The Customer accepts the Services on the basis of the standards set out in the Security & Backup Policy and accepts that the Supplier will have no liability owing to any loss, damage or corruption to Customer Data provided the standards in the Security & Backup Policy have been complied with. The Customer accepts the security standards set out in the Security & Backup Policy as an acceptable commercial standard in light of all the circumstances, including the level of charges applied by the Supplier. The Customer also acknowledges that it has the option of building additional layers of security where: (i) it uses third party hosting in connection with the Subscription Services, or (ii) the Software is installed locally in the Customer’s system. Customers who elect to use a third party hosting provider in connection with the Subscription Services shall be fully responsible for data backup, restoration and/or disaster recovery.
9.6 If the Supplier processes any Personal Data on the Customer’s behalf when performing its obligations under the Agreement:
(a) the Customer acknowledges and agrees that the Personal Data may be transferred or stored outside the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under the Agreement;
(b) the Customer shall ensure that it is entitled to transfer the relevant Personal Data to the Supplier so that the Supplier may lawfully use, process and transfer the Personal Data in accordance with the Agreement on the Customer’s behalf;
(c) the Customer shall ensure that the relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) the Supplier shall process the Personal Data only in accordance with the terms of the Agreement and any lawful and reasonable instructions given by the Customer from time to time; and
(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data or its accidental loss, destruction or damage.
9.7 The Customer accepts that the processing of electronic communications is a fundamental requirement for the provision of the Services and the Customer therefore consents to the Supplier’s interception and storage of electronic communications and Customer Data in connection with the Services. The Customer accepts that electronic communications involve transmission over the Internet, and over other networks, which are outside the Supplier’s control. The Customer accepts the risk associated with electronic communications and the possibility that they may be accessed by unauthorised parties and agrees that the Supplier is not responsible for any related delay, loss or damage.
9.8 When sending emails using the Software and Services of the Supplier, the Customer agrees to comply with all applicable anti-spam legislation and any anti-spam guidelines or policies issued by the Supplier, if any, which are hereby incorporated into and form part of this Agreement.
9.9 Services, Documentation, tools, and technical data delivered by or to the Supplier may be subject to Canadian and/or U.S. export controls or the trade laws of other countries. The Customer and the Supplier agree to comply with all export control regulations and acknowledge that they have the responsibility to obtain such licenses to export, re-export or import as may be required. The Customer and the Supplier agree not to export or re-export to entities on the most current Canadian and/or U.S. export exclusion lists or to any country subject to Canadian and/or U.S. embargo or terrorist controls as specified in the U.S. and/or Canadian export laws. The Customer and the Supplier will not use or provide Software, Services, Documentation, tools, and technical data for nuclear, missile, or chemical biological weaponry end uses.
9.10. Each party shall maintain adequate safeguards to protect the privacy of individuals in relation to the processing and dissemination of Personal Data and the protection of confidentiality of individual records and accounts, and in particular with regard to the transfer of Personal Data, all in accordance with the legislation governing the protection of Personal Data of the country, province, state or territory of the party where the transfer has originated and with due consideration of international standards of data protection.
9.11. The Software may automatically download and install updates from time to time from the Supplier’s website and the Customer agrees to receive such updates as part of the Software.
10. Third party providers and content
11. Proprietary rights
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the receiving party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
12.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
12.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
12.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
12.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
12.7 This clause 12 shall survive termination of the Agreement, however arising.
12.8 No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
13.1 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend and settle the claim.
13.2 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, Software and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend and settle the claim.
13.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
13.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than the Supplier; or
(b) the Customer’s use of the Services or Documentation in breach of the Agreement or in a manner contrary to the instructions given by the Supplier; or
(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
13.5 Subject always to the terms of clause 14, the foregoing states the Customer’s exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
14. Limitation of liability
14.1 This clause 14 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, officers, agents and sub-contractors) to the Customer:
(a) arising under or in connection with the Agreement;
(b) in respect of any use made by the Customer of the Services and Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
14.2 Except as expressly and specifically provided in the Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement, including any implied term(s) as to satisfactory quality or fitness for purpose;
(c) the Supplier’s responsibility with respect to Viruses shall be limited to using up to date commercial Virus checking software and the Customer accepts that the Supplier shall have no further responsibility or liability in that respect.
14.3 Nothing in the Agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) for any other liability which may not be excluded or limited under applicable law.
14.4 Subject to clause 14.3:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for (i) any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, in each case whether direct or indirect, or (ii) any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
(b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to 150% of the total Fees paid during the 12 months immediately preceding the date on which the claim arose. For the avoidance of doubt, the said limit applies to all and any indemnities given by the Supplier.
15.1 Without prejudice to any other right, power or remedy and without liability, the Supplier reserves the right to limit or suspend the Services:
(a) if it is reasonably necessary to protect the interests of the Customer or the Supplier, or the interests of any third party (including other customers) and/or to protect the security or operation of the Supplier’s systems or network or those of its customers;
(b) if the Customer breaches any of the terms of the Agreement or the Supplier reasonably believes the Customer has breached or is about to breach;
(c) if the Customer fails to pay any Fees when due;
(d) if the Customer fails to cooperate regarding any suspected or actual breach of the terms of the Agreement; or
(e) if required to do so by law or further to a request from any regulatory or governmental authority.
15.2 The Supplier may also temporarily suspend all or any part of the Services for the purpose of repair, maintenance or improvement of any systems. The Supplier shall use all reasonable endeavours to keep any such suspensions to a minimum and to carry out such works outside normal working hours wherever possible.
15.3 The Supplier shall not be liable for any suspension of the Services under the above circumstances and the Customer shall not be entitled to any setoff, discount, refund or other credit as a result of such suspension and/or disconnection and the Customer agrees that any such downtime will be exempt from measurement under the Service Level Agreement.
16.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party is or may be (in the reasonable opinion of the first party) unable to pay its debts or has a receiver, administrator, administrative receiver or liquidator or similar appointed or calls a meeting of its creditors or ceases for any other reason to carry on business
16.2 On termination of the Agreement for any reason:
(a) all licences granted under the Agreement shall immediately terminate;
(b) the Customer shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the Supplier;
(c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of termination of the Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 20 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
17. Force majeure
The Supplier shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions of the Agreement, the Order shall prevail over the Terms and the Terms shall prevail over any documents referred to or incorporated into the Terms.
The Supplier reserves the right to amend, remove, or add to the Terms at any time. Such modifications shall be effective immediately. The Customer agrees (i) to review the applicable Terms whenever accessing, linking to, or using the Supplier’s Site, Software and/or the Services, and (ii) that any access, link to, or use of the Supplier’s Site, Software and/or Services after the posting of modifications to the Terms will constitute the Customer’s acceptance of those Terms.
No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21. Rights and remedies
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.1 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
22.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
23. Entire agreement
23.1 The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
23.2 Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
24.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
24.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
25. No partnership or agency
Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
26. Third party rights
The Agreement does not confer any rights on any person or party other than the parties to the Agreement and, where applicable, their successors and permitted assigns.
27.1 Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes.
27.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
28. Governing law
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Ontario, Canada.
Each party irrevocably agrees that the courts of Ontario shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).