IDEAL TERMS AND CONDITIONS
This website and all other related websites on which a link to these Ideal Terms and Conditions (the “Agreement”) is displayed, and the content and services available on or through any of the foregoing (collectively, the “Ideal Service”) are provided to you (“Customer”) by O5 Systems, Inc. (DBA “Ideal”). These Terms govern all access and use of the Ideal Service.
BY ACCESSING OR USING THE SERVICE, OR ANY CONTENT OR SERVICES PROVIDED ON THE SERVICE, YOU ARE AGREEING TO THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER OR THE COMPANY YOU WORK FOR, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND, AND DO HEREBY BIND, THAT ENTITY TO THESE TERMS.
Ideal Service. Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable fees), Ideal grants Customer a non-exclusive, non-transferable right, during the Subscription Term, to Use Ideal’s web,API and integration based service expressly identified on each mutually accepted subscription order form or as selected by Customer on Ideal’s online order page (each, an “Order”). “Use” means that Customer may access by up to the number of users indicated on each Order (“Authorized Users”) solely for internal business purpose.
Restrictions. Customer shall not, directly or indirectly, and shall not authorize any person, to the maximum extent permitted by applicable law, to (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements of; (ii) translate, adapt, or modify; (iii) write or develop any program based upon; (iii) sell, sublicense, transfer any rights in, use for the benefit of, or allow access to, unauthorized persons to; (iv) transmit unlawful, infringing or harmful data or code to or from; (v) replicate significant portions of Ideal’s data, or (vi) otherwise use except as expressly permitted hereunder, in each case of (i) – (vi), the Ideal Service (including all technology constituting or used to provide such service) or Ideal’s data, as applicable (collectively, “Ideal Technology”).
Evaluation License. If Customer has selected a demonstration subscription to the Ideal Service then during the Trial Subscription Term, the Ideal Service will be provided to Customer on a trial basis and any subscription fee shall be waived. After the expiration of the Trial Subscription Term, unless Customer chooses to order a paid subscription to the Ideal Service, Customer’s access to Ideal Technology will automatically terminate.
TERM AND TERMINATION
a. Term. This Agreement will start on the effective date set forth on the first executed Order and, unless terminated earlier in accordance with this Agreement, will continue until the end of the last Subscription Term (as defined in the applicable Order) or the earlier termination of all applicable Orders. If Customer has selected a demonstration subscription then the this Agreement will start on the date the Ideal Service is first made available to Customer and will terminate thirty (30) days thereafter (the “Trial Subscription Term”). Ideal may terminate the Trial Subscription Term for convenience at any time upon notice to Customer.
b. Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding Orders, statement of works (“SOW(s)”), and access to Ideal Technology will automatically terminate; (ii) all outstanding payment obligations of Customer become due and payable immediately; and (iii) upon thirty (30) days from the date of termination, Ideal will have no further obligation to store or permit retrieval of such data. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.a, b, and 3 through 6.
CONFIDENTIALITY; OWNERSHIP; DATA
a. Definition. “Confidential Information” means any information disclosed directly or indirectly by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is either designated as “confidential” or under the circumstances of
disclosure or by the nature of the information itself is reasonably understood by the Receiving Party to be the confidential information of the Disclosing Party. Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. As between Ideal and Customer, the Ideal.Technology is the Confidential Information of Ideal, and the Customer Data is the Confidential Information of Customer. The terms (but not the existence) of this Agreement is each party’s Confidential Information.
b. Use; Maintenance. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except to employees of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality. Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party, and will take at least those measures that it takes to protect its own most highly confidential information. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information,
and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment. Ideal may list Customer as a customer (and in connection therewith may use Customer’s trademarks, marks and tradenames) in its promotional and marketing materials, including its website.
a. By Ideal. Ideal shall (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that Customer’s use of the Ideal Service as authorized in this Agreement constitutes a direct infringement of U.S. copyright or trade secret of any third party, and (ii) pay, subject to the limitations set forth in Section 5, damages awarded in a final judgment, (or amounts agreed in a monetary settlement), in any such claim defended by Ideal; provided that Customer provides Ideal (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Ideal in connection with the defense or settlement of, any such claim. If any such claim is brought or threatened, Ideal may, at its sole option and expense: (a) procure for Customer the right to continue to use the applicable Ideal Service; (b) modify the Ideal Service to make it non-infringing; (c) replace the Ideal Service with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate the applicable Ideal Service or this Agreement. Notwithstanding the foregoing, Ideal will have no liability to Customer for any claim arising out of or based upon the use of the Ideal Service in combination with software, products or services not provided by Ideal, or Customer’s failure to use the Ideal Service in accordance with this Agreement, or Customer Data.
b. Disclaimer. SECTION a STATES THE ENTIRE LIABILITY OF Ideal, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY Ideal OR ITS SERVICE OR TECHNOLOGY OR ANY PART THEREOF.
c. By Customer. Notwithstanding anything to the contrary in Section a, Customer shall defend or, at its option, settle, any Claim brought against Ideal alleging that the use by or on behalf of Ideal in accordance with this Agreement of the Customer Data and/or any Ideal’s data obtained pursuant to a request from Customer infringes or misappropriates any third party’s rights or violates
applicable laws, and Customer will pay damages finally awarded against Ideal (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer; provided that Ideal provides Customer with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Ideal may appear, at its own expense, through counsel reasonably acceptable to Customer.
DISCLAIMER; LIMITATION OF LIABILITY
a. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, Ideal HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. Ideal DOES NOT WARRANT THAT THE Ideal SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ITS SECURITY MEASURES WILL PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA. Ideal has no obligation to obtain, collect, store or use any data or information from any source, except if in the public domain or if Customer has sufficient rights to such data as may be necessary to perform Ideal’s obligations under this Agreement without infringing
or violating rights of others or the applicable law.
b. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR
CUSTOMER’S PAYMENT OBLIGATIONS NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES)
ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
6. GENERAL PROVISIONS
a. Assignment. Neither party may assign this Agreement nor any of its rights or obligations under this Agreement without the prior written consent of the other party, except that Ideal may assign this Agreement without the written consent of Customer as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
b. Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet. The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.
c. Governing Law. This Agreement shall be governed by and construed under the laws of the province of Ontario without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Toronto, Ontario, Canada, and the parties hereby agree and consent to the exclusive jurisdiction and venue of these courts.
d. Miscellaneous. This Agreement (which includes the Exhibits, Orders, SOWs hereto) is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The following order of precedence shall apply: Order, this Agreement, Exhibits, SOW. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of Ideal to object to such terms. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted hereof. This Agreement may only be amended by a writing signed by both parties. This Agreement may be executed in counterparts. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. Any required notice shall be given in writing by customary means with receipt confirmed at the address of each party set forth below, or to such other address as either party may substitute by written notice to the other. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courier service, or 3 days after deposit in the mail. The relationship between the parties shall be that of independent contractors. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision. Customer agrees to comply with all applicable export control laws and regulations related to its use of Ideal Technology.
Must Be At Least 18 Years Old to Use This Website.
At this Website O5 Systems, Inc. makes no active effort to collect personal information from individuals under the age of eighteen (18). O5 Systems, Inc. requires that Website users must be of legal age to enter into agreements (typically, at least eighteen (18) years of age or older).
For further information, or inquiries about this Agreement, please contact:
26 Soho Street, 204
Toronto, ON, M5T 1Z7
November 30th, 2016