Software as a Master Service Agreement
This Software as a Consumption Agreement (the “Agreement”) is entered into by and between Ownest, Inc. (the “Provider”) and you (the “Customer”), (collectively the “Parties” or individually, a “Party”), as of the date the Customer accepts the present Agreement (the “Effective Date”).
PROVIDER PROVIDES THE SOFTWARE PLATFORM AND SOFTWARE SERVICES (AS HEREINAFTER DEFINED) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT THE CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY USING THE SOFTWARE PLATFORM, SOFTWARE SERVICES, OR CHECKING THE "ACCEPT" BOX ON THE ENGAGEMENT AGREEMENT YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROVIDER WILL NOT AND DOES NOT PROVIDE A SOFTWARE SUBSCRIPTION TO CUSTOMER AND YOU MUST NOT USE OR DOWNLOAD THE SOFTWARE PLATFORM, SOFTWARE SERVICES OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR CUSTOMER'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO SUBSCRIPTION IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY SOFTWARE THAT CUSTOMER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF PROVIDER'S SOFTWARE.
Article 1 Definitions
1.1 Capitalized terms used in this Agreement shall have the definition set forth herein:
1.1.1 “Authorized Users” means Customer's employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder as set forth on the Engagement Agreement.
1.1.2 "Documentation" means user manuals, technical manuals and any other materials provided by Provider, in printed, electronic, or other form, that describe the installation, operation, use or technical specifications of the Software Platform .
1.1.3 “Engagement Agreement” means the Engagement Agreement filled out and submitted by or on behalf of Customer, and accepted by Provider, for Customer's purchase of the subscription for the Software Platform granted under this Agreement.
1.1.4 “Feedback” means transmissions or communications suggesting or recommending changes to the Software Platform or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like.
1.1.5 "IP Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection in any part of the world.
1.1.6 ” Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or another requirement of any federal, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
1.1.7 "Loss" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees, disbursements and charges and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.1.8 “Person” means an individual, corporation, partnership, joint venture, governmental authority, unincorporated organization, trust, association and the executors, administrators, or other legal representatives of an individual in such capacity.
1.1.9 "Resultant Data" means data and information related to the Customer’s use of the Software Services that is used by the Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software Services.
1.1.10 “Software Platform” means Ownest’s lead qualifier software, including any Updates provided to Customer pursuant to this Agreement, as further described in Schedule A.
1.1.11 “Software Services” means the Software Platform application(s), including the platform and management system, which includes (i) the cloud-based portal through which the Software Platform may be downloaded and otherwise accessed; (ii) the Software Platform launcher and (iii) all other applications made available by Provider from time to time.
1.1.12 “Transaction Fees” means the transaction fees paid or required to be paid by Customer, including all taxes thereon, for the subscription granted under this Agreement as defined in Section 5 of this Agreement
1.1.13 “Third Party Material” means materials and information, in any form or medium, including any software, advertisements, documents, data, content, specifications, products, equipment, components or services used in conjunction with the Software Platform, or relating to the Software Services, or use thereof that are not owned or proprietary to Provider.
1.1.14 “Unused Credits” means any purchases made and agreed to in the Engagement Agreement, using the Software Platform that Provider generally makes available free of charge to all licensees of the Software Platform.
1.1.15 “Updates” means any updates, bug fixes, patches, or other error corrections to the Software Platform that Provider generally makes available free of charge to all licensees of the Software Platform.
Article 2 Services
2.1 Access and Use. Subject to and conditioned on Customer’s payment of Subscription Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable right to access and use the Software Services during the Term to: (i) use the Software Platform and Software Services solely for Customer’s internal business purposes up to the number of Authorized Users set forth in the Engagement Agreement; and (ii) use and make a reasonable number of copies of the Documentation solely for Customer’s internal business purposes in connection with Customer’s use of the Software Services. The total number of Authorized Users will not exceed the number set forth in the Engagement Agreement, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable hereunder. Provider shall provide to Customer the Access Credentials within a reasonable time following the Effective Date. Back-up copies of the Software Services may be made available to the Customer on a per-case basis and at Provider’s sole discretion.
2.2 Documentation License. Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.4) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services
2.3 Use Restrictions. Customers shall not use the Software Services or Documentation for any purposes beyond the scope of this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not, and shall not permit any other Person to, at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software Services or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, assign, distribute, publish, transfer, or otherwise make available the Software Services or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) remove any proprietary notices from the Software Services or the Documentation; or (v) use the Software Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
2.4 Changes to Software Services or Software Platform . Provider reserves the right, in its sole discretion, at any time, with or without notice, to make any changes to the Software Platform or Software Services that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Software to the Customer, (ii) the competitive strength of or market for the Software Services, or (iii) the Software Service’s cost efficiency or performance; or (b) to comply with applicable Laws or orders. For the avoidance of doubt, such changes may include the modification or discontinuance, temporarily or permanently, of any feature associated with the Software Platform or Software Services.
2.5 Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and license expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software Platform or the Software Services or the Documentation. Customer hereby acknowledges that Provider retains all rights, title, and interests in and to the Software Platform, the Software Services and the Documentation. Customer shall not contest, challenge, or otherwise make any claim or take any action adverse to Provider’s ownership of or interests in, or the validity of, the Software Services, the Documentation and the intellectual property related thereto, including in any proceeding before any governmental authority.
2.6 Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP, (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider, (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities, (D) subject to applicable Law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 2.6 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
Article 3 Customer Responsibilities
3.1 General. Customer is responsible and liable for all uses of the Software Platform, Software Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customers shall make reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software Platform or Software Services and shall cause Authorized Users to comply with such provisions.
3.2 Third-Party Material. Provider may distribute certain Third-Party Material with the Software Platform or Software Services. For purposes of this Agreement, such Third-Party Materials are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for such Third-Party Material, then Customer should not install or use such Third-Party Material.
3.4 Third-Party Providers. Provide may change and/or update their own systems and/or rules. Customer will be notified of any changes, updates and/or rules and will work with these Third-Party Providers to implement any changes to ensure they are implemented therefore the Customer will be able to continue with their Business Operations.
Article 4 Support
4.1 The access rights granted hereunder entitles Customer to the support services described from time to time on Provider's website located at [PROVIDER'S WEBSITE ADDRESS] for [SUPPORT PERIOD] following the Effective Date under this Agreement.
4.2 Scheduled Downtime. Provider will use commercially reasonable efforts to (a) schedule downtime for routine maintenance of the Services between the hours of ([NUMBER]) a.m. and ([NUMBER]) a.m., [TIME ZONE/LOCATION] Time; and (b)] give Customer at least seventy-two (72) hours prior notice of all scheduled outages of the Services (the "Scheduled Downtime").
Article 5 Fees and Payment
5.1 Fees. Customer shall pay Provider the Fees set forth in the Engagement Agreement without offset or deduction, including without limitation no offset for unused credits. Such Fees are comprised of Processing Credits for use of the Software Platform, in the volume and amount as set out in Section 4 of the Engagement Agreement. Invoices for the Fees/Processing Credits shall be issued by the Service Provider on a quarterly basis throughout the Term, which invoice shall be immediately due and payable by the Customer and pre-billed for the upcoming quarter.C ustomers shall make all payments hereunder in Canadian dollars on or before the due date set forth in the Engagement Agreement. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) Provider may charge interest on the past due amount at the rate of one and a half percent (1.5%) calculated daily and compounded monthly (equivalent to 18% per annum) or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including legal fees on a solicitor-and-own client cost basis, court costs, and collection agency fees; and (iii) if such failure continues for 5 days following written notice thereof, Provider may prohibit access to the Software Platform or Software Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such [prohibition of access to the Software Platform or Software Services. The payment of Subscription Fees shall be executed pursuant to the Engagement Agreement, reproduced in the Statement of Work.
5.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value-added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
5.3 Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5.1. Customer shall pay for the costs of the audit if the auditor determines that Customer’s underpayment equals or exceeds ten percent (10%) for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of two (2) years after the termination or expiration of this Agreement.
Article 6 Confidential Information.
6.1 Confidential Information. From time to time during the Term, either Party (the “Disclosing Party'') may disclose or make available to the other Party (the “Receiving Party”) information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other forms of media and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the Receiving Party at the time of disclosure; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (d) independently developed by the Receiving Party.
6.2 Disclosure. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
6.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement, and (ii) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its most sensitive information and, in no event, less than a reasonable degree of care.
6.4 Survival of Obligations. Each Party’s obligations of nondisclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of nondisclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Article 7 Proprietary Rights
7.1 Intellectual Property Ownership. Customer acknowledges that the Provider owns all right, title, and interest, including all IP Rights, in and to the Software Platform, Software Services and Documentation. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data; PROVIDED HOWEVER that the Customer may formally request in writing that the Resultant Data be used for other internal purposes prior to its’ use, which consent may be granted by the Provider in its sole and unfettered discretion.
7.2 Feedback. If Customer or any of its employees or contractors sends or transmits any Feedback to Provider by mail, email, telephone, or otherwise, Provider is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns on its behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
7.3 Use of Customer Name and Statements. Customer grants Provider a fully paid, perpetual, transferable worldwide license to use Customer’s name, likeness, voice, image, trademark, service mark, and logo (as applicable) and any statements or quotes of Customer for promotion, trade, commercial, advertising, and publicity purposes, in any and all media now known or hereafter discovered without notice, review or approval and without additional compensation.
7.4 Notice of Infringement. Customer shall promptly notify Provider in writing if Customer becomes aware of any actual or suspected infringement, misappropriation, or other violation of Provider’s IP Rights in or relating to the Software or Documentation.
Article 8 Data Backups
8.1 The Software Services do not replace the need for Customer to maintain regular data backups or redundant data archives. Provider will store data backups for a one (1) year period, which can be provided to the Client following a written request to this effect. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
Article 9 Transfer of Customer Information
Article 10 Warranty Disclaimer.
10.1 THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ACCURACY OF THE DATA PROVIDED BY THE SOFTWARE PLATFORM OR THE SOFTWARE SERVICES, AND ALL CONDITIONS AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SOFTWARE PLATFORM, SOFTWARE SERVICES AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Article 11 INDEMNIFICATION
11.1 Provider Indemnification.
11.1.1 Provider shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that the Software Platform, Software Services, or Documentation, or any use of the Software Platform, Software Services or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights including patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
11.1.2 If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Software Platform, Software Services, or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that none of these alternatives is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
11.1.3 This Section 11.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Software Platform, Software Services, or Documentation in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (ii) modifications to the Software Platform, Software Services not made by Provider; (iii) use of any version other than the most current version of the Software Platform, Software Services or Documentation delivered to Customer; or (iv) Third-Party Products.
11.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its officers, directors, employees, agents, subcontractors, successors, and assigns (each, including Provider, a "Provider Indemnitee") from and against any and all Losses incurred by the Provider Indemnitee in connection with any claim, action, proceeding or suit (each, an "Action") by a third party to the extent that such Losses arise out of or relate to any allegation:
11.2.1 of or relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under this Agreement.
11.2.2 of or relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Customer or any of its Authorized Users with respect to the Software Platform, Software Services or otherwise in connection with this Agreement;
11.2.3 of or relating to use of the Software Platform or the Software Services by or on behalf of Customer or any of its Authorized Users that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to Provider's instructions.
11.3 Procedure. A Party shall promptly notify the other Party in writing of any Action for which it believes it is entitled to be indemnified under Section 11.1 or 11.2. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
11.4 Exclusion of Damages. In no event will Provider be liable under or in connection with this Agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, for any (a) increased costs, diminution in value or lost business, production, revenues or profits, (b) loss of goodwill or reputation, (c) use, inability to use, loss, interruption, delay or recovery of the Software Platform, Software Services or open-source components or other Third Party Materials, (d) loss, damage, corruption or recovery of data, or breach of data or system security, (e) cost of replacement goods or services, or (f) consequential, incidental, indirect, special, aggravated, punitive or exemplary damages, in each case regardless of whether such Persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable.
11.5 Sole Remedy. The provisions of this Section 11 shall constitute the sole remedy of the Parties against each other with respect to those claims for which indemnification is contemplated under this Agreement, other than claims based on conduct constituting fraud, fraud-in-the-inducement, or intentional misrepresentation.
11.6 Cap on Monetary Liability. In no event will Provider’s liability under this Section 11 exceed the total amounts paid to the Provider under this Agreement, as established in the Engagement Agreement.
Article 12 Term and Termination
12.1 Initial Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, shall remain in effect for the term set forth on the Engagement Agreement (the "Initial Term”).
12.2 Renewal. This Agreement will automatically renew for successive terms equivalent to the term set forth on the Engagement Agreement unless earlier terminated under this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days before the expiration of the then-current term (the "Renewal Term" and, collectively, together with the Initial Term, the "Term").
12.3 Termination. This Agreement may only be terminated in accordance with the following:
12.3.1 by Provider, effective on written notice to Customer, if Customer (a) fails to pay the Subscription Fees when due hereunder, and such failure continues more than fifteen (15) days after Provider's delivery of written notice thereof; or (b) breaches any of its obligations under Section 2.3 or Section 6;
12.3.2 by either Party, effective on written notice to the other Party, only if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
12.3.3 by Provider, effective immediately upon written notice to Customer, if Customer: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
12.4 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the Customer shall immediately discontinue use of the Software Platform or Software Services, and, without limiting Customer's obligations under Section 6, Customer shall cease using and delete, destroy, or return all copies of the Software Platform and Software Services, as the case may be, and certify in writing to the Provider that the Software has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all License Fees that may have become due before such expiration or termination or entitle Customer to any refund.
12.5 Survival. This Section 12.5 and Sections 5.1, 6, 7, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement shall survive the expiration or earlier termination of this Agreement.
Article 13 Miscellaneous
13.1 Incorporation of Schedules. The schedules attached to this Agreement shall, for all purposes of the Agreement, form an integral part of it (“Schedules”). For greater certainty, the following Schedules are incorporated by reference to this Agreement
Schedule “A” Engagement Agreement
13.2 Entire Agreement. This Agreement, together with the Engagement Agreement and any other documents incorporated herein by reference and all related Schedules, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Engagement Agreement, the related Schedules, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, the Engagement Agreement and this Agreement, excluding its Schedules; (b) second, the Schedules to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
13.3 Relationship. Notwithstanding anything in this Agreement, the Parties acknowledge and agree that this Agreement does not constitute and shall not be construed as constituting an agency, partnership or joint venture between Provider and Customer. Customer shall have no right to obligate or bind Provider in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third Persons.
13.4 Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, whose consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
13.5 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
13.6 Amendment, Modification and Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege
13.7 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise
13.8 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the address set forth on Provider’s website www.ownest.ai for the Provider and at the address provided upon initial registration for the Customer, or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
13.9 Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, endemics, epidemics, pandemics (including the 2019 novel coronavirus disease (COVID-19) pandemic), war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (each, a “Force Majeure Event”). In the event of any failure or delay caused by a Force Majeure Event, Provider shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
13.10 Governing Law. This Agreement and all exhibits and schedules attached hereto and all matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable.
13.11.1 All disputes arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement (a “Dispute”), shall be exclusively resolved by arbitration under the Arbitration Rules of the ADR Institute of Canada, Inc. (the “ADRIC Rules”). The seat of the arbitration shall be Calgary. The language of the arbitration shall be English. The arbitration panel shall consist of three arbitrators. All matters relating to any Dispute which is the subject matter of arbitration hereunder, including all submissions made to the arbitrators and the decision of the arbitrators, shall be treated as private and confidential by the Parties and the Parties shall, and shall cause any witnesses, counsel or professional advisers retained in connection with such an arbitration to, maintain all such matters in strict confidence.
13.11.2 All Disputes shall first be raised by written notice (the “Notice”) by one Party to the other. Thereafter the Parties shall engage in good faith negotiations to resolve the Dispute. If the Dispute is not resolved through such good faith negotiations within twenty (20) Business Days of the delivery of the Notice, the Dispute shall then be dealt with pursuant to Section 13.11.1.
13.11.3 Notwithstanding Section 13.11.1, in respect of a matter requiring injunctive relief, order for specific performance or other similar equitable relief, or in respect of the enforcement of a judgment, directive or order of the arbitral tribunal, a Party may, instead of availing itself of the ADRIC Rules dealing with urgent interim relief, make application to the Alberta Court of Queen's Bench sitting in Calgary and any courts of appeal therefrom, following two (2) Business Days’ Notice (including a reasonably detailed description) to the other Party.
13.11.4 The arbitration award shall be given in writing and shall be final and binding on the Parties and not subject to any appeal rights, which the Parties hereby expressly waive. The arbitration award shall deal with the question of costs of the arbitration and all other related matters.
13.12 Counterparts. This Agreement may be executed in separate or electronic counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.