O5 Systems Inc. DBA Ideal
HOSTED SOFTWARE AND SERVICES TERMS & CONDITIONS
THIS SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF IDEAL SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF CUSTOMER REGISTERS FOR A FREE TRIAL OF IDEAL SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES
WHEREAS: Company requires a third-party hosted “software as a service” as further described herein and Provider has the expertise in the business of providing such services, and Provider has agreed to provide the Services to Company on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and of the mutual promises and covenants hereinafter expressed, the parties hereto mutually agree as follows:
1.1 Definitions. In this Agreement, the following terms have the meanings set out below:
(a) “Act of Insolvency” means where a party is dissolved, becomes insolvent, has a receiver appointed for it or any of its assets, makes a proposal or assignment for the benefit of its creditors, becomes a debtor or debtor in possession in any bankruptcy, reorganization or similar proceeding, or otherwise ceases to carry on business in the ordinary course.
(b) “Affiliate” means any entity controlling, controlled by or under common control with a party to this Agreement; and “control” “controlled by” and “under common control with”, used with respect to any entity, means direct or indirect power to direct or exercise a controlling influence over the management or policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
(c) “Business Day” means 8:30 a.m. to 5:00 p.m. Eastern Standard Time, Monday to Friday inclusive, except statutory or civic holidays observed in Ontario and any other holidays observed by Company.
(d) “Company Data” means any data and information (including Personal Information) provided or made available to Provider by or on behalf of Company or its Affiliates as required for the performance of the Services, as further described in one or more SOWs, and including without limitation, any data or information related to employees, applicants, contractors, or customers of Company or its Affiliates, and which may or may not be hosted by Provider in the Hosted Services.
(e) “Company IP” means the IPR in (i) the Hosted Data and Company Data; and (ii) all report cards generated, and delivered to Company as Deliverables.
(f) “Confidential Information” means any and all information including Hosted Data, whether or not marked as “confidential” or “proprietary”, directly or indirectly provided by or through a party (“Discloser”) to the other party or its representatives (“Recipient”) at any time and in any form (including written, oral, or electronic), including without limitation, information related to any of the following relating to Discloser’s business or operations: (i) customers; suppliers or prospects; (ii) financial or accounting data; (iii) marketing, research or advertising data, including, without limitation, strategies or techniques, customer lists, pricing, product positioning, differentiation or clinical data; (iv) information related to hardware, software or other equipment, or configurations of same; (v) any proprietary information, including know-how, show-how, trade-secrets, processes and techniques, whether or not protected under by statute or common law, as applicable; (vi) the terms of this Agreement; (vii) Personal Information; and (viii) any other information that would reasonably be considered to be of a confidential or proprietary nature.
(g) “COTS software” means commercial-off-the-shelf software in object code form, and all error corrections and functionality enhancements, that have been generally commercially released and are available for license or sublicense from Provider. For greater certainty, COTS software does not include customization or additional development of COTS software for Company.
(h) “Deliverable” has the meaning set out in S. 3.2.
(i) “Force Majeure Event” meanings an act of God, force of nature, fire, or other casualty, expropriations, war-like activity, insurrection, or civil commotion, shortage of raw materials or supplies, other similar act or event beyond a party’s reasonable control, but expressly excluding labour unrests or strikes by a party’s employees, agents, subcontractors, or other representatives.
(j) “Hosted Data” means any data and information provided or made available to Provider by or on behalf of Company or its Affiliates in connection with the Services, including without limitation, data related to their existing or prospective employees or contractors.
(k) “Hosted Documentation” means, collectively, the then current documentation made generally available by or on behalf of Provider to its customers and any other documentation made available pursuant to a SOW, to Company or its Affiliates that describes the features, functions, operation, performance, service levels, and/or maintenance and support of the Hosted Software and the Services.
(l) “Hosted Services” means, collectively, (i) the service of making Hosted Software available to Company or its Affiliates for use (via an API or web browser-based thin client applications), whether such Hosted Services are provided using premises or equipment of Provider or a third party on its behalf, and (ii) any other services provided in accordance with S. 3.1
(m) “Hosted Software” means, collectively, (i) any computer software owned by or licensed to Provider, installed on equipment of Provider or a third party (and not Company or its Affiliates), that is made available by or on behalf of Provider for use by Company or its Affiliates via API or web browser-based thin client applications, (ii) any software, including without limitation COTS software, specified in a SOW made available by Provider and/or its third party licensors and contractors, but for certainty excluding any software developed by Company or an Affiliate or a third party on Company or its Affiliate’s behalf.
(n) “IPR” means without limitation, all rights in any invention, discovery, improvement, utility, patent, patent rights, trademarks, copyrightable work, industrial design or mask work, algorithm, data structure, trade secrets or know how, confidential information, or any idea having commercial value. IPR shall include all rights of whatsoever nature in computer software and data, all intangible rights or privileges of a nature similar to any of the foregoing in every case in any part of the world and whether or not registered, and all rights in any applications and granted registrations for any of the foregoing rights.
(o) “Parties” means, collectively, Company and Provider and “party” means any one of them.
(p) “Personal Information” means any information that identifies an individual, (including without limitation an individual’s government-issued identification number, birthdate, address, phone number, biometric data, mother’s maiden name, email address, credit card data, or a name in combination with any other information that can be used to identify an individual.
(q) “Professional Services” means any additional services to be performed by Provider pursuant to a SOW, which may include but is not limited to configuration of Hosted Software and training.
(r) “Provider IP” means all right, title or interest in any and all IPR in the Services and Hosted Software.
(s) “Services” means, collectively, the Hosted Services and Professional Services.
(t) “SOW” means a statement of work for Services agreed by the parties in the form of Schedule A.
(u) “SOW Term” means the term of any SOW as set forth in the applicable SOW.
2. TERM AND TERMINATION
2.1 This Agreement will be in effect during the effective period of any SOW issued under this Agreement.
2.2 Either party may terminate this Agreement, or any SOW : A) for cause if a material breach by the other party of a material provision of this Agreement or a SOW is not cured within thirty (30) days of written notice; B) by giving written notice to the other party if the other party: (i) is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction (which is not stayed within thirty (30) days); (ii) makes an assignment for the benefit of creditors or has a receiver, trustee or similar agent appointed with respect to its property or business.
2.3 Company may terminate this Agreement, or any SOW , at any time, without cause, for convenience upon sixty (60) days written notice to Provider unless the applicable SOW otherwise expressly provides for a longer period, and subject to the payment of any SOW prescribed wind-down fees.
2.4 Upon any termination or the expiration of this Agreement or any SOW, Provider will: (i) provide a final invoice to Company for amounts due, and (ii) at Company’s option, continue to store the Hosted Data for an agreed fee. Provider will: (i) not erase any Hosted Data stored on the Services for a period sixty (60) days following termination becoming effective; (ii) will provide post-termination assistance, including retrieving and delivering to Company all Hosted Data at its standard fee, if any.
3.1 Provider shall provide the Services pursuant to this Agreement and applicable SOW. Unless otherwise specified in a SOW, Provider grants Company a renewable, non-exclusive, royalty-free and worldwide right to access and use the Hosted Software.
3.2 Following receipt from Provider of access to the Services as configured for use by Provider pursuant to such SOW, Company shall notify Provider in writing whether Company accepts access to the configured Services (referred to as a “Deliverable”). Company may within 15 days, reject any Deliverable not conforming to the Hosted Documentation and other objective requirements set forth in a SOW by written notice specifying the reasons for rejection. Unless Provider disputes the non-conformity in good faith, Provider will, at its sole expense, correct the Deliverable so that it conforms. If Provider is unable to correct the Deliverable, Company may terminate the applicable SOW or this Agreement and Provider shall refund to Company any amounts paid relating to such Deliverable as set forth in the applicable SOW. Provider has no obligation to correct or refund if Provider disputes in good faith Company’s non-conformity claim, and the claim remains unsettled.
3.3 Company shall not redistribute, re-sell or make available the Services or Hosted Software to any third party (other than subcontractors acting as its agents using it on Company’s behalf as expressly permitted in this Agreement or a SOW).
3.4 Other than the limited rights granted by Company to Provider to use Hosted Data solely as expressly set forth in this Agreement, Company reserves all right, title and interest (including all IPR) in and to Hosted Data.
4. REPRESENTATIONS AND WARRANTIES
4.1 Each party represents, warrants and covenants to the other that a) it has the authority to enter into and perform its obligations under this Agreement (and obtained all necessary consents, including those of third parties); and b) entering and performing this Agreement will not conflict with any agreement between it and any third party.
4.2 Company represents, warrants and covenants to Provider that during the entire term it will have the right to transfer Company Data to Provider.
4.3 Provider represents, warrants and covenants to Company that:
(a) all Services will conform to the applicable SOW and Hosted Documentation;
(b) the Software have been and will be tested for viruses using commercially available virus scanning utilities, in accordance with reasonable industry practices from time to time;
(c) Services provided will be performed in good and workmanlike manner by a skilled and qualified staff in accordance with reasonable industry standards and applicable law;
(d) Provider has all the rights and licenses in the Services necessary to allow the use of same as authorized herein by Company and its Affiliates, without restriction or additional charge to Company or its Affiliates except as may be expressly limited herein or the applicable SOW;
(e) the Hosted Data shall at all times during this Agreement remain and be held and processed in The United States or Canada, by or on behalf of Provider; and
(f) this Agreement, and the Services themselves do not and will not violate any applicable law.
5.1 Each party as indemnitor agrees to defend at its own expense, and indemnify, and hold harmless the other party and each of its Affiliates, and their respective directors, officers, employees, representatives, and agents (collectively, “Indemnitees”) from and against any and all amounts (including without limitation reasonable lawyers’ fees), awarded in favour of the third party plaintiff, in a non-appealable final judgment (or agreed to be paid by indemnitor) arising out of any claims, actions, demands, legal proceedings, against Indemnitees , (collectively, the “Damages”) to the extent arising out of:
(a) any infringement by or on behalf of indemnitor of IPR;
(b) culpable bodily injury (including death) or damage to real or tangible personal property;
(c) any violation by or on behalf of indemnitor, of applicable law or failure to obtain any required third party privacy consent; and
(d) breach in the use or disclosure of Confidential Information obligations by or on behalf of indemnitor under S. 9 (“Confidentiality”) hereof.
5.2 Upon any indemnification claim under this S. 6, Indemnitee shall (a) promptly notify indemnitor of such claim, (b) reasonably cooperate with indemnitor in the defense thereof, and (c) not settle any such claims without indemnitor’s consent (which indemnitor will not unreasonably withhold, condition or delay). Indemnitor shall keep Company informed at all material times as to the status of indemnitor’s efforts, obtain Indemnitee input concerning indemnitor’s efforts, and shall not settle the claim without Indemnitee’s prior written consent, if settlement would require payment or admission of liability by Indemnitee.
5.3 In addition to Provider’s obligation and liabilities above, if an infringement claim is made or appears likely to be made in relation to Services, Provider shall, at Provider’s option and at no additional cost to Company, arrange one or more of the following: (i) procure for Company and/or any affected Company Affiliate the right to continue to use the applicable Services, (ii) modify the Services so that they are no longer infringing, or (iii) replace the applicable Services with non-infringing options. If none of these alternatives is commercially reasonable, Company and the applicable Affiliates shall cease its use of any affected Services, for a full refund of all amounts pre-paid for the unused balance of the term.
6. LIMITATION OF LIABILITY
6.1 EXCEPT FOR OBLIGATIONS UNDER S. 6 (“INDEMNIFICATION”), S. 9 (“CONFIDENTIALITY”), S. 10 (“DATA PROTECTION”), S. 11 (“PRIVACY AND PERSONAL INFORMATION”), DAMAGES OCCASIONED BY A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE , NEITHER PARTY NOR ANY OF ITS AFFILIATES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO, LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGE, LOSS OR LIABILITY IS BASED ON TORT, CONTRACT, FAILURE OF ESSENTIAL PURPOSE OR ANY OTHER THEORY OF LAW. UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE FEES PAID (OR DUE) BY COMPANY TO THE PROVIDER IN THE LAST TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY SUCH CLAIM OR DAMAGES, EXCEPT FOR AN INDEMNIFICATION CLAIMS BY EITHER PARTY UNDER S.6 FOR WHICH NO LIMITATION SHALL APPLY.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Company is and will be the exclusive owner of the Company IP.
7.2 All right, title and interest, including all IPR, in the Company IP will vest in Company, immediately upon creation and regardless of the state of completion of such Company IP.
7.3 Provider will acquire no rights to any Company IP other than the license rights expressly granted in S. 8.6. Provider will not assert any lien right, or other encumbrance, on Company IP, and will permit Company to always have full, free and unfettered access to the Company IP, even if there is a dispute between the Parties.
7.4 Provider or its licensors own the Provider IP. Company is only granted a non-exclusive right, during the term, to use Provider IP in its permitted use of the Services. All right, title and interest, including all IPR, in Provider IP will vest in Provider, immediately upon creation and regardless of the state of completion of such the Provider IP. Company hereby grants to Provider and its Affiliates a worldwide, irrevocable, perpetual, royalty-free license (i) to exploit without restriction all feedback regarding Hosted Software or Hosted Services; (ii) to use log and other information derived from Company’s use of the Hosted Software or Hosted Services (“Usage Data”) as well as Company Data and Hosted Data in de-identified form, to improve Provider’s products and services.
7.5 Unless otherwise agreed to in a SOW, Company will acquire no rights to any Provider IP other than the license rights expressly granted under or in respect of this Agreement.
7.6 Company grants to Provider, during the applicable SOW Term, a non-exclusive, non-transferable, royalty-free license to:
(a) access, use, copy, support, maintain and, to the extent reasonably necessary to provide the Services and modify the Company IP (other than any trademarks of Company), solely for the purpose of fulfilling Provider’s obligations under the applicable SOW or a change order;
(b) display those trademarks which Company identifies or provides to Provider, solely for the purposes of performing its obligations under the applicable SOW or a change order; and
(c) sublicense the rights referred to in S.s 8.6(a) and 8.6(b) to subcontractors solely to the extent necessary to enable such subcontractors to fulfil Provider’s obligations under the applicable SOW or change order.
7.7 Each party agrees to take any action and fully cooperate at its expense with the other party as the other party may from time to time request to effect the provisions of this S. 8.
8.1 “Confidential Information”
8.2 Each party agrees to use the Confidential Information furnished by the other party only as permitted or reasonably required for the purposes of this Agreement and for no other purposes, whether directly or indirectly.
8.3 Each party agrees to employ reasonable safeguards to keep the other’s Confidential Information strictly confidential and shall not disclose it, directly or indirectly, to any other person except as expressly permitted under this Agreement. Without limiting the generality of the foregoing, each party agrees that unless required by law, it will not disclose Confidential Information disclosed by the other party in whole or in part to others without the written approval of the other party, except, on a “need-to-know” basis only, to employees, agents, advisors and subcontractors of Recipient or its Affiliates that are bound by a written obligation to Recipient materially corresponding to those of Recipient hereunder (the “Permitted Recipients”). Neither party shall, directly or indirectly: (a) reproduce, exploit or further develop the other’s Confidential Information in any form in whole or in part, save and except as permitted by or as may be used directly for the purposes of this Agreement; (b) incur or suffer to exist any claim or encumbrance with respect to the other’s Confidential Information; or (c) use or disclose any the Confidential Information disclosed by the other party contrary to this Agreement.
8.4 The confidentiality obligations shall apply to any and all parts of the Confidential Information except that to which the Recipient can demonstrate: (a) is or becomes generally publicly available through authorized disclosure by or on behalf of Discloser; (b) is lawfully obtained by Recipient from third parties with the lawful right to disclose; (c) is previously actually known to Recipient at the time of disclosure or is independently developed by Recipient without use of or reference to the Confidential Information prior to the initial disclosure thereof by Discloser, and such actual knowledge or independent development, can be established by evidence acceptable to a court of competent jurisdiction; (d) Recipient is required to disclose by law or judicial order, provided that prior to so disclosing, Recipient shall notify, and cooperate with Discloser, to lawfully limit such disclosure and/or obtain appropriate protective orders respecting such portions of such Confidential Information required to be disclosed.
8.5 Upon a breach or threatened breach of this Agreement by Recipient, a Permitted Recipient, or persons acting on behalf of Recipient, the parties agree that, in addition to any remedy at law that Discloser may have for damages, Discloser shall be entitled to apply for injunctive relief prohibiting any and all use and disclosure of its Confidential Information (without limiting pursuit ofany other remedies Discloser may have as a result of a breach.
8.6 Each party may require the immediate return or destruction of its respective Confidential Information and all copies thereof, if any, in the other’s possession and that the other party has provided to any third parties, and immediate destruction of all documents and software to the extent containing copies or extracts or in its possession, power or control. A senior officer of the returning party will certify in writing the return and/or destruction. The return and destruction shall not relieve a party of its confidentiality obligations in this Agreement respecting Confidential Information. Notwithstanding the foregoing, during the term, Company need not return any Provider Confidential Information to the extent it is necessary for a Service hereunder pursuant to the terms of this Agreement.
8.7 Each party acknowledges and agrees that Confidential Information of Discloser is and shall be owned by Discloser or its affiliates or licensors, as applicable.
8.8 Each party shall promptly notify the other party of any unauthorized disclosure, possession, use or knowledge of Confidential Information received by it as Recipient that becomes known to such party.
9. DATA PROTECTION
9.1 Subject to S.9.4, Company Data is Confidential Information: (a) data collected, used, processed, stored, or generated as the result of the use of the Services; and as between the parties, Company Data and reports generated by the Service for Company, are and shall remain the sole and exclusive property of Company and all right, title, and interest in the same is reserved by Company.
9.2 Provider is granted a limited license to collect, process, store, generate, and display Company Data to provide the Services. Provider shall use such care as is appropriate and consistent with its obligations in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss of Company Data; and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Company Data for Provider’s own purposes or for the benefit of anyone other than Company without Company’s prior written consent.
9.3 Provider is responsible for maintaining a backup of Company Data and for an orderly and timely recovery of such data if the Services may be interrupted.
9.4 Provider covenants and agrees to assist Company to comply with applicable law regulating the protection and privacy of Confidential Information.
10. PRIVACY AND PERSONAL INFORMATION
10.1 Provider covenants and agrees that all Personal Information transferred to or otherwise accessed by Provider in the course of Provider performing its obligations hereunder, is information owned by Company or its Affiliate providing such Personal Information for the purposes of this Agreement. Provider will not use Personal Information for any purposes other than as permitted under this Agreement and is subject to S.9 “Confidentiality”. Further, Provider shall comply with all applicable privacy legislation governing the collection, use, storage, protection, and disclosure of Personal Information.
10.2 Provider represents, warrants and covenants to Company as follows, and acknowledges that Company has relied upon the completeness and accuracy of such representations, warranties and covenants in entering into this Agreement:
(a) that it has in place technical and organizational security measures intended to protect Personal Information against accidental or unlawful destruction or unauthorized disclosure or access; and
(b) that it will not use Personal Information for any purpose other than as set out in this Agreement.
10.2 If Provider receives a privacy complaint, inquiry or other notice or communication from any third party concerning Personal Information (a “Complaint”), it shall, to the extent allowable by law, promptly notify Company or Affiliate that provided such Personal Information. Unless otherwise required by law or approved in writing by Company or such Affiliate, as applicable, Provider will not respond to the Complaint other than to communicate that the matter will be forwarded to Company’s privacy compliance office for immediate handling. Provider shall cooperate fully with Company and its Affiliates, as applicable, in the response to the Complaint.
Only after Company has accepted, and is actively using, a Service, may Providerdisclose that Company is a client of Provider, but Provider cannot disclose the terms of this Agreement.
12. 1 Dispute Resolution
(a) If a dispute arises out of this Agreement, the parties shall first promptly work in good faith to resolve such dispute internally. To this end, each party shall designate an employee with authority to resolve the dispute. During this resolution process, each party will honour the other’s reasonable requests for non-privileged and relevant information. If the parties are still unable to resolve the dispute, the parties shall submit it to binding arbitration, on the terms set out below. For certainty, this Section will not apply if: (a) the expiration of the statute of limitations for a cause of action is imminent; or (b) injunctive or other equitable relief is sought.
(b) Subject to any claims for injunctive or equitable relief, any dispute relating to this Agreement, shall be finally settled by arbitration conducted in accordance with the Ontario Arbitration Act, S.O. 1991, c.17 as amended from time to time, in Toronto, Ontario, in English. Either party may initiate arbitration within a reasonable time after any such dispute has arisen, by delivering a written demand for arbitration upon the other party.
(c) The arbitration shall be conducted by a single, independent, unconflicted arbitrator appointed jointly by agreement of the parties, failing which an arbitrator on application by either party, by a Judge of the Superior Court of Justice of Ontario. Absent agreement or an award in the arbitration to the contrary, the arbitration fees and expenses shall be split equally between the parties.
(d) A party starting an arbitration (the “Claimant”) shall serve a statement setting out its claims and the basis for them and shall attach all relevant documents on which it intends to rely to support its positions (the “Claimant’s Statement”). The respondent shall, within thirty (30) days of delivery of the Claimant’s Statement, deliver a responding statement setting out its position and all documents which it intends to rely upon in support of its position (the “Respondent’s Statement”, and together with the Claimant’s Statement, collectively, the “Statements”). The Claimant shall have fifteen (15) days to deliver a reply and any further documents which it intends to rely upon in support. After the exchange of Statements: (i) neither party may deliver or rely upon any further documents except with the consent of the other party, or the approval of the arbitrator; and (ii) if the arbitrator believes mediation would be most likely to result in a settlement, the arbitrator shall select a mediator and direct the parties to attend mediation. The arbitrator may limit the total hours for discovery by each side (so long as the number is equal). Within thirty (30) days after the last examination for discovery, either party may deliver to the arbitrator a chart setting out: (a) undertakings not (or inadequately) answered; (b) questions refused; and (c) such written submissions or explanations as counsel sees fit to provide. The arbitrator, after reviewing the: (i) parties’ statements; (ii) transcripts; and (iii) charts and (iv) written submissions; shall make such orders respecting undertakings and refusals as the arbitrator sees fit.
(e) The arbitrator shall have the authority to award any remedy or relief that a court or a judge of the Superior Court of Justice of Ontario could order or grant in accordance with this Agreement, including, without limitation, specific performance of any obligation created under this Agreement, an interim, interlocutory or permanent injunction, or sanctions for abuse or frustration of the arbitration process.
(f) Neither party shall call expert evidence. If a party reasonably believes expert evidence will assist the arbitrator, it will advise the arbitrator and the other party, and the arbitrator may select, retain, and instruct an expert to assist the arbitrator’s deliberations; arbitrator shall provide the parties a copy of: (a) instructions to the expert; (b) any report the expert may deliver to the arbitrator; and (c) any account delivered to the arbitrator by the expert. The parties shall have the opportunity to cross examine the arbitrator’s expert in a hearing before the arbitrator. The costs of any expert retained by the arbitrator shall be split equally between the parties.
(g) The arbitration proceeding and each element of it (including but not limited to the Statements, any pleadings, briefs or other documents submitted and exchanged, and testimony or other oral submissions and any awards) is confidential and shall not be disclosed beyond the arbitrator, the Arbitration Institute (if applicable), the parties, their counsel and any person necessary to the conduct of the proceeding, except as may be lawfully required in judicial proceedings relating to the arbitration or otherwise.
12.2 Survival of Terms
Any provision (of this Agreement or any attachment hereto) which by its nature reasonably extends beyond Agreement termination or expiration will survive according to its terms, including, but not limited to, this S.13.2 and S. 5 (Representations and Warranties), S. 6 (Indemnification), S. 7 (Limitation of Liability), S. 9 (Confidentiality), S. 10 (Data Protection), S. 11 (Privacy and Personal Information), and S. 15 (General), and any applicable provisions of S. 1 (Definitions) referred in any surviving provision.
12.3 Force Majeure Event
Neither party shall hold the other party liable for any breach of this Agreement or an Exhibit where such breach has been caused by a Force Majeure Event. Upon the occurrence of a Force Majeure Event, the affected party shall notify the non-affected party immediately and describe in reasonable detail the circumstances causing the Force Majeure Event. During the period of the Force Majeure Event, the non-affected party may seek to have its needs, which would otherwise be met under this Agreement, met by others without liability to the affected party hereunder. The affected party must immediately commence commercially reasonable efforts to: (i) remove the disability and (ii) recommence performance whenever and to the extent possible without delay.
12.4 Relationship of the Parties
The parties are independent contractors. This Agreement does not constitute and shall not be construed as constituting a partnership, joint venture, principal/agency relationship, master/servant relationship, or employer/employee relationship between the parties, nor any of their personnel, agents, representatives or subcontractors, and neither has any authority to assume or create any obligation or liability of any kind on behalf of the other.
12.5 Further Assurances
Each of the parties hereto shall at its own expense and upon the request of another party hereto at any time and from time to time, promptly execute and deliver, or cause to be executed and delivered, all such further acknowledgements, consents, assurances and other documents, and promptly do, or cause to be done, all such further acts and things as that other party may reasonably request in order fully to effect the purposes of this Agreement. No party shall unreasonably withhold, delay or condition any consent.
12.6 English Language
The parties have requested that this Agreement and all documents contemplated by this Agreement be drawn up in English. Les parties aux présentes ont exigé que cette entente et tous autres documents envisagés par les présentes soient rédigés en anglais.
12.7 Entire Agreement
This Agreement, its Schedules or other attachments, if any, including documents incorporated by reference therein, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous negotiations, and understandings of any nature whatsoever, oral or written, unless expressly incorporated by additional reference in this Agreement. Use of pre-printed forms, including, but not limited to purchase orders or click wrap agreements, acknowledgements or invoices, is for convenience only and all pre-printed terms and conditions stated thereon, except as specifically set forth in this Agreement, are void and of no effect.
No waiver of any term or condition: (i) is valid unless in writing and signed by an authorized representative of both parties, and will be limited to the specific situation for which it is given; (ii) shall be inferred from or implied by any failure to act or delay in acting by a party in respect of any default by another party; (iii) shall operate as a waiver of any continuing or subsequent default (of the same or any other nature).
No amendment or modification to this Agreement will be valid unless set forth in writing and signed by authorized representatives of both parties. Any such agreement shall expressly state that it is intended to amend or supplement, as the case may be, this Agreement.
Assignment of this Agreement by either party in whole or in part, without the express written permission of the other party is null and void.
Any notice required or permitted by this Agreement must be in writing in English and delivered by certified or registered mail, or courier, return receipt requested, postage prepaid or by confirmed facsimile transmission at the addressed first noted in the preamble herof or to such other addresses as may be designated by notice from one party to the other, all such notices being effective on the date delivered:
(a) if to Company: attn: Somen Mondal, CEO
and if to Provider: C.O.O. with a copy to C.F.O.
Any provision invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be severed from the balance of this Agreement, without affecting the remaining provisions or affecting validity or enforceability of such provision in other jurisdictions. Appropriate amendments (by good faith negotiation or by the S.13 Dispute Resolution process) shall be made to this Agreement to put the party disadvantaged by such invalidity or unenforceability in the same financial position as if no provision hereof were invalid or unenforceable.
The rights and remedies of the parties hereunder are exclusive.
Provider shall maintain in full force and effect at its own expense, during the term, insurance coverage per Schedule C Insurance, and provide a certificate evidencing the insurance.
12.15 Legal Counsel
The parties acknowledge having had ample opportunity to obtain independent legal advice, and that any rule of construction to the effect that ambiguity is resolved against the drafter shall not be apply in interpretation of this Agreement.
12.16 Governing Law
This Agreement shall be exclusively governed by and construed per the laws of Ontario, without regard to its conflict of law’s provisions, (and of Canada applicable therein). Except with respect to enforcement of judgments or motions for injunctive relief, each party hereby (a) irrevocably attorns to the exclusive jurisdiction of Ontario courts for the purpose of any proceeding arising out of this Agreement, brought by either party or its successors or assigns, (b) waives, and agrees not to assert, by way of motion, as a defence or otherwise, in any proceeding, to the fullest extent permitted by applicable law, that the proceeding is brought in an inconvenient forum, that the venue is improper, or that this Agreement, may not be enforced in or by such Ontario courts, (c) waives the right to jury trial, and (d) waives any right, claim, or entitlement to any punitive or exemplary damages whatsoever, except as otherwise provided in this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods and any local implementing legislation related thereto is hereby expressly excluded.
12 17 Counterparts
This Agreement may be signed in counterparts, and each counterpart (and any copy made by reliable means (e.g. photocopy, electronic scan or facsimile)) is deemed an original and all constitute the same agreement. Receipt of an electronic mail, digital or facsimile signature in the space provided below will represent final execution and acceptance of the Agreement.
Article, section and/or paragraph headings in this Agreement are for reference purposes only and shall not be used in the interpretation hereof.