CARRUS Technologies - Terms & conditions

These Terms and Conditions, effective as of the effective date set out in the Proposal (the Effective Date”), is by and between Carrus Technologies Inc. ( Company”) and the customer identified on the Proposal ( Customer”). As Company provides a subscription Service to which Customer intends to subscribe, this Agreement establishes the business relationship and allocation of responsibilities regarding the Service and the parties therefore agree as follows:

  1. PROVISION OF SERVICE.

    1. Company Obligations. During the Term, Company shall: (i) make the Service available to Customer in accordance with the Documentation, the SLA, and pursuant to the terms of this Agreement; and (ii) not use Customer Data except to provide the Service, prevent or address service or technical problems, or verify Service Improvements, in accordance with this Agreement and the Documentation, or in accordance with Customer’s instructions.

    2. Customer Obligations. Customer may enable access to the Service for use only by Authorized Users in accordance with the Documentation and not for the benefit of any third parties. Customer is responsible for all Customer Affiliate and Authorized Users use of the Service and compliance with this Agreement. Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all information submitted to Company, including, but not limited to, Customer Data; and (b) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Company promptly of any such unauthorized access or use. Customer shall not: (i) use the Service in violation of Laws; (ii) in connection with use of the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) to the best of Customer’s knowledge send or store Malicious Code in connection with use of the Service; (iv) interfere with or disrupt performance of the Service or the data contained therein; or (v) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation.

    3. Third-Party Products. Company may from time to time make available to Customer third-party products or services that are interoperable with the Service (the Third-Party Products”). The access and use by Customer of such Third-Party Products is at Customer’s sole discretion and Company shall not be considered as an agent or reseller of any Third-Party Product’s, nor does shall it warrant or support such Third-Party Products, whether or not they are designated by Company as certified” or otherwise, unless it is otherwise specifically agreed to in a Proposal. Customer understands and agrees that its access and use of Third-Party Products is subject to the third-party supplier’s terms and conditions (the Third-Party Supplier”), which compliance is Customer’s sole responsibility. By accepting to implement, installs, use or access a Third-Party Product, Customer acknowledges that Company shall allow the Third-Party Supplier to access and use the Customer Data which are necessary for the good functionality of such Third-Party Products. Company shall not be liable for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Supplier of Customer Data.

      Notwithstanding the foregoing, Company may provide standard Company-supported integration or interface between Third Party Products and the Company Service. Those configured integrations are subscribed to by Customer as part of the Company Service and and, as such, are provided with ongoing support by Company in accordance with Company s then-current SLA. Any integration or interface between Third Party Products and the Company Service that are developed either (i) by Customer, (ii) by a partner or third party acting on Customer’s behalf pursuant to a separate and independently executed third party agreement, or (iii) by Company pursuant to a Statement of Work are deployed, maintained, and supported by Customer and are not part of the Company Service, unless otherwise agreed to in the Proposal.

  2. FEES.

    1. Invoices & Payment. Subscription Fees and all other fees due hereunder will be invoiced to Customer in Canadian dollars. All fees due hereunder (except fees subject to good faith dispute) shall be due and payable within thirty (30) days of invoice date. Company may send all Customer invoices electronically (by email or otherwise). All fees are based on access rights acquired and not actual usage, unless otherwise stated in the Proposal. Customer shall provide Company with complete and accurate billing contact information including a valid email address. Upon Company’s request, Customer will make payments via electronic bank transfer. All remittance advice and invoice inquiries can be directed to sales@carrus.ca. Company reserves the right to increase its pricing after giving Customer written notice of a pricing increase at least 30 days before the end of the prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

    2. N on-cancelable & Non-refundable. Except as specifically set forth to the contrary in this Agreement, all payment obligations under any and all à Proposals are non-cancelable, and all payments made are non-refundable.

    3. Overdue Payments. In addition to any other rights or remedies of Company and except with respect to charges then under reasonable and good faith dispute, any payment not received from Customer by the due date may accrue, at Company's discretion, late charges at the rate of 1.5% (19,56 % per year) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

    4. Non-Payment and Suspension of Service. Except with respect to charges subject to a reasonable and good faith dispute, if Customer's account is more than thirty (30) days past due, in addition to any other rights or remedies it may have under this Agreement or by law, Company reserves the right to suspend the Service upon thirty (5) days written notice, without liability to Customer, until such amounts are paid in full.

    5. Taxes. Subscription Fees and all other fees invoiced pursuant to this Agreement do not include, and may not be reduced to account for, any taxes, which may include local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes, and foreign withholding taxes (collectively defined as Taxes”). Customer is responsible for paying all Taxes imposed on the Service or any other services provided under this Agreement (other than taxes based on Company’s income). If Company has a legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be computed based on Customer’s address listed in the Proposal which will be used as the ship-to address on the Proposal, and invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.

  3. PROPRIETARY RIGHTS.

    1. Company Ownership. Company and its licensors own all rights, title and interest in and to the Service, Documentation, and other Company Confidential Information. Subject to the limited rights expressly granted hereunder, Company reserves all rights, title and interest in and to the Service, and Documentation, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

    2. Grant of Company Rights. Company hereby grants Customer (for itself and its Authorized Users for whom Customer enables access to the Service) a non-exclusive, non-transferable, right to use the Service and Documentation, solely during the Term, subject to the terms and conditions of this Agreement and within the scope of use defined in the relevant Proposal.

    3. Restrictions. Customer shall not (i) modify or copy the Service or Documentation or create any derivative works based on the Service or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party, other than to Authorized Users as permitted herein; (iii) reverse engineer or decompile any portion of the Service or Documentation, including but not limited to, any software utilized by Company in the provision of the Service and Documentation, except to the extent required by Law; (iv) access the Service or Documentation in order to build any commercially available product or service, except as otherwise provided in an applicable Proposal; or (v) modify, copy or create derivative works of any features, functions, integrations, interfaces or graphics of the Service or Documentation. Notwithstanding the above, Customer may make a reasonable number of copies of the Documentation for internal business purposes only.

    4. Customer Ownership. Customer and its licensors own all rights, title and interest in and to the Customer Data and other Customer Confidential Information. Subject to the limited rights expressly granted hereunder, Customer reserves all rights, title and interest in and to Customer Data, including all related Intellectual Property Rights. No rights are granted to Company hereunder other than as expressly set forth herein.

    5. Grant of Customer Rights. Customer hereby grants Company a royalty-free, non-transferable, non-exclusive, non-assignable right to use Customer Data and Customer Confidential Information for the sole purpose of rendering the Services hereunder.

    6. Customer Input. Company shall have a royalty-free, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into its Services any Customer Input. Company shall have no obligation to make Customer Input an Improvement. Customer shall have no obligation to provide Customer Input.

  4. CONFIDENTIALITY.

    1. Confidentiality. A party shall not disclose or use any Confidential Information of the other party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement or with the other party's prior written permission.

    2. Protection. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.

    3. Compelled Disclosure. A disclosure by one party of Confidential Information of the other party to the extent required by Law shall not be considered a breach of this Agreement, provided the party so compelled promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party's cost, if the other party wishes to contest the disclosure. Subject to the foregoing, in the event of any request by a government agency or law enforcement authority for access to Customer Data, Company will seek to redirect the inquiry to Customer. In all such cases, Company will take all reasonable measures to protect the Customer Data and to inform Customer of such demand.

    4. Remedies. If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.

    5. Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) is received from a third party without breach of any obligation owed to the other party. Customer Data shall not be subject to the exclusions set forth in this section.

  5. CUSTOMER DATA.

    1. Protection and Security. Company shall maintain a formal security program in accordance with industry standards that is designed to: (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.

    2. Unauthorized Disclosure. If either party believes that there has been a Security Breach, such party must promptly notify the other party, unless legally prohibited from doing so. Additionally, each party will reasonably assist the other party in mitigating any potential damage.

    3. Location of Customer Data. Customer Data will be housed in data centers located in the Canada or in the United States, unless otherwise agreed and specified in the Proposal.

  6. WARRANTIES & DISCLAIMERS.

    1. Warranties. Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws. Company warrants that during the Term (i) the Service shall perform materially in accordance with the Documentation; (ii) the functionality of the Service will not be materially decreased during the Term; and (iii) to the Company’s best knowledge, the Service does not contain any Malicious Code at delivery.

    2. Warranty Remedies. In the event of a breach of the warranty set forth in Section 6.1 (i), (ii) or (iii) Company shall correct the non-conforming Service at no additional charge to Customer. Customer shall use its commercially reasonable efforts to notify Company in writing within thirty (30) days of identifying a deficiency, but Customer’s failure to notify Company within such thirty (30) day period shall not affect the Customer’s right to receive warranty remedies unless Company is somehow unable to, or impaired in its ability to, correct the deficiency due to Customer’s failure to notify Company within the thirty (30) day period. Notice of breaches of the warranty in Section 6.1(i) shall be made through Company’s then-current error reporting system; notices of breaches of any other warranty shall be made in writing to Company in accordance with the Notice provisions of this Agreement. In the event Company is unable to correct such deficiencies after good-faith efforts, Customer may elect to terminate this Agreement in accordance with the Section 9.2. The remedies set forth in this subsection shall be Customer’s sole remedy and Company’s sole liability for breach of these warranties

    3. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND/OR RELATED DOCUMENTATION. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED IN SECTION 6.1 ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICE.

      WITH RESPECT TO THE CATALOGUE SERVICE, CUSTOMER UNDERSTANDS AND ACKNOWLEDGES (I) THAT COMPANY IS NOT INVOLVED IN ANY OF THE TRANSACTIONS THAT OCCUR BETWEEN ANY WAREHOUSE DISTRIBUTOR (DISTRIBUTOR”) AND CUSTOMER, OR BETWEEN ANY OTHER PERSON OR ENTITY OR PART SELLER, IN CONNECTION WITH THE PRODUCT; (II) THAT COMPANY DOES NOT ACT AS A BUYER, BROKER OR SELLER OF ANY ITEM THAT IS OFFERED, ACCEPTED, SOLD, OR TRANSFERRED BY OR BETWEEN ANY DISTRIBUTOR AND CUSTOMER, OR ANY PERSON OR ENTITY, IN CONNECTION WITH THE SERVICE; (III) THAT COMPANY POSTS INFORMATION, INCLUDING FROM THIRD PARTIES (E.G., PARTS MANUFACTURERS, SUPPLIERS, AND OTHER SOURCES OF INFORMATION) WHICH MAY OR MAY NOT BE ACCURATE, RELIABLE OR AVAILABLE; (IV) THAT COMPANY ASSUMES NO FOR DAMAGES CAUSED BY INCORRECT PARTS USAGE AND HAS NO RESPONSIBILITY TO VERIFY THAT THE PARTS ARE CORRECT FOR A VEHICLE IN ACCORDANCE WITH THE MANUFACTURERS’ SPECIFICATIONS; (V) THAT COMPANY IS MERELY AN EDITOR AND/OR REPUBLISHER OF PREEXISTING INFORMATION WITH NO RESPONSIBILITY FOR ITS ACCURACY OR RE OR FOR EDITING OR REPUBLISHING IT ACCURATELY, AND (VI) THAT COMPANY WILL NOT BE RESPONSIBLE FOR ANY MATTER OF ANY KIND RELATING TO OR ARISING OUT OF ANY TRANSACTION, OR ANY OTHER PERSON OR ENTITY, IN CONNECTION WITH THE SERVICE OR OTHERWISE. ALTHOUGH COMPANY WILL MAKE REASONABLE COMMERCIAL EFFORTS TO ENSURE THE ACCURACY OF THE DATABASES, NEITHER COMPANY NOR ITS SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE CONDITION, QUALITY, COMPLETENESS, ACCURACY, PERFORMANCE, CORRECTNESS, DEGREE OF CURRENCY, DESIGN OR SUITABILITY OF THE DATABASES, WHICH ARE PROVIDED SOLELY ON AN AS IS” AND AS AVAILABLE” BASIS. IF AN ERROR REGARDING THE DATABASES IS REPORTED BY CLIENT TO COMPANY, COMPANY IN ITS SOLE JUDGMENT AND DISCRETION, SHALL MAKE ALL DECISIONS CONCERNING THE CORRECTION OF ERRORS AND THE IMPLEMENTATION OF CORRECTIONS AND/OR WORK-AROUND SOLUTIONS, INCLUDING WITHOUT LIMITATION, THE TIMING THEREOF.

  7. INDEMNIFICATIONS.

    1. Company Indemnity. Company shall defend Customer, at Company’s expense, from any Claim against Customer by a third party alleging that the use of the Service as contemplated under this Agreement infringes or misappropriates such third party’s Intellectual Property Rights and Company shall indemnify and hold Customer harmless against any Losses relating to such Claim.

    2. Customer Indemnity. Customer shall defend Company, at Customer’s expense, from any Claim against Company by a third party alleging that the use of (a) Customer Data, and/or (b) any other data submitted by Customer and Authorized Users to Company pursuant to its use of the Service as contemplated under this Agreement, infringes, or misappropriates such third party’s Intellectual Property Rights and Customer shall indemnify and hold Company harmless against any Losses relating to such Claim.

    3. Conditions. The indemnitor’s obligations in Sections 7.1 and 7.2 are conditioned on indemnitee: (a) promptly giving written notice of the Claim to indemnitor (although a delay of notice will not relieve the indemnitor of its obligations under this section except to the extent that the indemnitor is prejudiced by such delay); (b) giving indemnitor sole control of the defense and settlement of the Claim (although indemnitor may not settle any Claim unless it unconditionally releases indemnitee of all liability); and (c) providing to indemnitor, at indemnitor’s cost, all reasonable assistance.

    4. Exceptions. Company shall have no liability for Claims or Losses to the extent arising from: (a) modification of the Service by anyone other than Company; (b) use of the Service in a manner inconsistent with this Agreement or Documentation; or (c) use of the Service in combination with any other product or service not provided by Company.

    5. Continued Use of the Service. If Customer is enjoined from using the Service or Company reasonably believes it will be enjoined, Company shall have the right, at its sole option, to obtain for Customer the right to continue use of the Service or to replace or modify the Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to Company, then the applicable Service may be terminated at either party’s option and Company’s sole liability in addition to the indemnification obligations herein, shall be to refund any prepaid Subscription Fees for the applicable Service that was to be provided after the effective date of termination.

    6. Exclusive Remedy. This Section 7 states each indemnitee’s exclusive remedies and the indemnitor’s sole obligations for all third party Claims related to the subject matter of this Section.

  8. LIABILITY.

    1. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO (i) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH AT SECTION 7; (ii) EITHER PARTY’S RECKLESS MISCONDUCT, GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND/OR FRAUD AND BODILY INJURY OR (iii) CUSTOMER’S PAYMENT OBLIGATIONS, THE MAXIMUM LIABILITY OF EITHER PARTY (WHICH INCLUDES ITS RESPECTIVE AFFILIATES, AND IN THE CASE OF COMPANY, ALSO INCLUDES ITS THIRD PARTY LICENSORS) FOR ANY AND ALL CLAIMS (INDIVIDUALLY AND IN THE AGGREGATE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO AN AMOUNT EQUAL TO THE SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SERVICE FROM WHICH THE CLAIM(S) AROSE (OR, FOR A CLAIM(S) ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE THE AMOUNT PAID OR PAYABLE FOR THE FIRST TWELVE (12) MONTH PERIOD).

    2. EXCLUSION OF DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, OR COST OF DATA RECONSTRUCTION, WHETHER IN CONTRACT, TORT OROTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

  9. TERM & TERMINATION.

    1. Term of Agreement. The Term commences on the Effective Date and continues until the stated term in all Proposals has expired or has otherwise been terminated, unless otherwise extended pursuant to the written agreement of the parties. Subscriptions to the Service commence on the date, and are for a period, as set forth in the applicable Proposal.

    2. Termination. Either party may terminate this Agreement: (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event this Agreement is terminated, all Proposals are simultaneously terminated. Upon any termination by Customer pursuant to this section, Company shall refund Customer any prepaid fees for the affected Service that were to be provided after the effective date of termination. For clarity, a breach or termination of any professional services agreement or of any applicable statement of work and/or work order thereunder, shall not be considered a material breach or termination of this Agreement. In addition, both parties hereby waive and exclude any and all additional termination rights that they might otherwise have had under applicable law, including, without limitation, for-convenience and similar termination rights.

    3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall, as of the date of such expiration or termination, immediately cease accessing and otherwise utilizing the applicable Service (except as permitted under the section entitled Retrieval of Customer Data”) and Company Confidential Information. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Company prior to the effective date of termination, and termination for any reason other than for uncured material breach by Company shall not relieve Customer of the obligation to pay all future amounts due under all Proposals.

    4. Retrieval of Customer Data. Customer may, within sixty (60) days after expiration or termination of this Agreement, request to retrieve Customer Data from the Service. After such sixty (60) day period, Company will have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete or render inaccessible all Customer Data from the Service; provided, however, that Company will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases Company will continue to protect the Customer Data in accordance with this Agreement. Customer Data will be made available in a industry standard format appropriate for the type of data (for example, CSV, delimited text or Microsoft Excel). The foregoing deletion obligation will be subject to any retention obligations imposed on Company by Law.

    5. Surviving Provisions. The following provisions of this Agreement shall not survive and will have no further force or effect following any termination or expiration of this Agreement: (i) sub-clause (i) of Section 1.1 Company Obligations”, (ii) Section 3.2 Grant of Rights”) and (iii) services referenced in any applicable Proposal(s). All other provisions of this Agreement shall survive any termination or expiration of this Agreement.

  10. GENERAL PROVISIONS.

    1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.

    2. Customer Identification. Company may use Customer's name and logo in lists of customers, on earnings calls and releases, marketing materials and on its website. Customer may require Company to withdraw any use of Customer’s name and logo if Customer reasonably considers that Company’s use thereof is derogatory, defamatory, or detrimental to Customer or in any way damages Customer’s business or reputation. Upon signing the Proposal, Company may issue a high-level press release announcing the relationship and the manner in which Customer will use the Services, unless Customer objects in writing to such a press release in the Proposal.

    3. Notices. Unless expressly stated otherwise, all notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery or (ii) the third business day after first class mailing. Notices to Company shall be sent to the address shown in the Proposal addressed to the attention of the Legal Department. Notices to Customer shall be sent to the address shown in the Proposal. Each party may modify its recipient of notices by providing notice pursuant to this Agreement.

    4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

    5. Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, pandemic, strikes or other labor problems (other than those involving Company or Customer employees, respectively). Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

    6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Proposals) without consent of the other party to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets so long as the assignee agrees to be bound by all of the terms of this Agreement and all past due fees are paid in full. Any attempt by a party to assign its rights or obligations under this Agreement other than as permitted by this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

    7. Governing Law and Jurisdiction. The governing law that applies to the judicial interpretation and resolution of any disputes arising out of or relating to this Agreement shall be the Province of Quebec, Canada if Customer’s billing address is in Canada or the State of New York, United States, if Customer’s billing address is in the United States or elsewhere in the world and in such a case, each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. Each party irrevocably submits to the exclusive jurisdiction of the courts of the aforementioned applicable jurisdiction, and each party agrees to the applicable law above without regard to rules regarding choice of law or conflicts of law.

    8. Export. The Service, and derivatives thereof may be subject to export laws and regulations of the United States, Canada and other jurisdictions. Each party shall comply with the export laws and regulations of the United States, Canada and other applicable jurisdictions in providing and using the Service. Each party represents that it is not named on any U.S. or Canadian government denied-party list. Without limiting the generality of the foregoing, Customer shall not make the Service available to any person or entity that: (i) is located in a country that is subject to a U.S. or Canadian government embargo; (ii) is listed on any U.S. or Canadian government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.

    9. Anti-Corruption. Customer represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Company’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

    10. Miscellaneous. This Agreement, including all exhibits and attachments hereto and all Proposals, constitutes the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict, the provisions of this Agreement shall take precedence over provisions of the Proposal and over any other exhibit or attachment to this Master Subscription Agreement, unless specifically set forth in such document. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement shall be legally binding with the same force and effect as manually executed signatures. It is the express wish of the parties that this Agreement be drawn up in the English language only. Il est de la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement.

    11. DEFINITIONS.
Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Agreement” means this Terms and Conditions, including the SLA, any exhibits, addenda, or attachments hereto, and any fully executed Proposal. Authorized Users” means any person authorized by Customer to use the Service under this Agreement and who has been supplied user identifications and passwords by Customer (or by Company at Customer's request), including, if specified in the Proposal, Customer’s Affiliates.

Claim” means any claim, demand, suit, or other legal proceeding made or brought against a party to this Agreement.

Confidential Information” means (a) any software utilized by Company in the provision of the Service and its respective source code; (b) Customer Data; (c) each party’s business or technical information, including but not limited to the Documentation, presentations, financial models, summaries, data, reports, interpretations, forecasts, records and other documents, know-how, technology, source or object code, processes, methods, formulae, compositions, inventions, devices, plans, strategies, studies, customer lists, pricing policies, employee information, Intellectual Property Rights, the substance of agreements with clients, suppliers and others, and marketing arrangements, as well as any information derived, summarized or extracted from, based on or relating to any of the foregoing that is designated by the disclosing party as confidential or proprietary or the receiving party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or parties).

Customer Data” means the data or information submitted by Customer and Authorized Users, to the Service.

Customer Input” means suggestions, enhancement requests, recommendations or other feedback provided by Customer and Authorized Users relating to the operation or functionality of the Service.

Documentation” means paper or electronic documents prepared by Company, describing the functions of the Service.

Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Service and Documentation.

Intellectual Property Rights” means any and all of the following in any jurisdiction throughout the world, whether registered or not : (a) trademarks, and the goodwill connected with the use of and symbolized by the foregoing; (b) copyrights; (c) trade secrets and confidential know-how; (d) patents; (e) websites and internet domain name registrations; and (f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing).

Law” means any provincial, federal, local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.

Losses” means any damages or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees).

Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.

Proposal” means the separate ordering documents under which Customer subscribes to the Service or other services pursuant to this Agreement and/or professional services agreement that have been fully executed by the parties.

Personal Data” has the definition set forth in the Data Processing Exhibit.

Security Breach” means (i) any actual or reasonably suspected unauthorized use of, loss of, access to or disclosure of, Customer Data; provided that an incidental disclosure of Customer Data to an Authorized User or Company or its Affiliates, or incidental access to Customer Data by an Authorized User or Company or its Affiliates, where no reasonable suspicion exists that such disclosure or access involves theft, or is fraudulent, criminal or malicious in nature, shall not be considered a Security Breach” for purposes of this definition, unless such incidental disclosure or incidental access triggers a notification obligation under any Law, (ii) any Personal Data Breach as defined in the Data Processing Exhibit, and (iii) any security breach (or substantially similar term) as defined by applicable Law affecting Customer Data.

Service” means Company’s software-as-a-service applications and Improvements as described in the Documentation and subscribed to under a Proposal.

SLA” means Service Level Availability Exhibit, which may be updated by Company from time to time. No update shall materially decrease Company’s responsibilities under the SLA.

Subscription Fees” means all amounts invoiced and payable by Customer for the Service.

Term” has the meaning set forth in Section 9.1.