Cloud Service Terms

Article 1 – Cloud Services

1.01 The Agreement. Collectively, these Cloud Service Terms, the Cover Page, the Cloud Service Level Terms, the Cloud Support Service Terms, and any Orders form the parties’ agreement (“Agreement”). Conflicts between parts of the Agreement are governed by Section 19.05 (Order of Precedence). Capitalized terms are defined in context or in ARTICLE 20 (Definitions).

1.02 Cloud Service. Subject to this Agreement, Customer may use the Cloud Service for its own business purposes during each Subscription Term (“Permitted Use”). This includes the right to copy and use the Provider Software (if any) and Documentation as part of Customer’s Permitted Use. Customer will comply with the Documentation in using the Cloud Service.

1.03 Changes to Cloud Service. Provider reserves the right, in its sole discretion, to make any changes to the Cloud Services and Documentation that it deems necessary or useful to:

1. maintain or enhance: (i) the quality or delivery of Provider's services to its customers, (ii) the competitive strength of or market for Provider's services, or (iii) the cost efficiency or performance of the Cloud Services; or

2. to comply with applicable laws.

Without limiting the foregoing, either Party may, at any time during the Subscription Term, request in writing changes to the Cloud Services. The Parties shall evaluate and, if agreed, memorialize their agreement in a Statement of Work, signed (physically or virtually) by the Parties.

1.04 Users. Customer may permit Users to use the Cloud Service on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Cloud Service and for their compliance with this Agreement. Customer will ensure that Users keep their login credentials confidential and will promptly notify Provider upon learning of any compromise of User accounts or credentials.

1.05 Affiliates. Customer’s Affiliates may serve as Users under this Agreement. Alternatively, Customer’s Affiliates may sign their own Orders as mutually agreed with Provider, which creates a separate agreement between each such Affiliate and Provider incorporating this Agreement with the Affiliate treated as “Customer”. Neither Customer nor any Customer Affiliate has any rights under each other’s separate agreement with Provider, and breach or termination of any such separate agreement affects only that agreement.

Article 2 – Data

2.01 Use of Customer Data. Subject to this Agreement, Provider will access and use Customer Data solely to provide and maintain the Cloud Service, Support and Professional Services under this Agreement (“Use of Customer Data”). Use of Customer Data includes sharing Customer Data as Customer directs through the Cloud Service, but Provider will not otherwise disclose Customer Data to third parties except as permitted in this Agreement.

2.02 Security. Provider will use appropriate technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Customer Data.

2.03 Usage Data. Provider may collect Usage Data and use it to operate, improve and support the Cloud Service and for other lawful business purposes, including benchmarking and reports. However, Provider will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify Customer, its Users or any other person, and (b) aggregated with data across other customers.

Article 3 – Mutual Compliance with Laws

3.01 Each party will comply with all Laws that apply to its performance under this Agreement.

Article 4 - Support and SLA

4.01 Support. Provider will provide Support for the Cloud Service as described in the Support Policy on the Cover Page. If no Support Policy is identified, Provider will provide Support for the Cloud Service consistent with industry-standards applicable to the industry in which Provider operates and Provider’s general business practices.

4.02 SLA. Provider will adhere to the Service Level Agreement (SLA) identified on the Cover Page. If no SLA is identified, Provider will use commercially reasonable efforts to make the Cloud Service available for Customer’s use 95.0% of the time in each month.

Article 5 – Warranties

5.01 Mutual Warranties. Each party represents and warrants that:

1. it has the legal power and authority to enter into this Agreement, and

2. it will use industry-standard measures to avoid introducing Viruses into the Cloud Service.

5.02 Additional Provider Warranties. Provider warrants that:

1. the Cloud Service will perform materially as described in the Documentation and Provider will not materially decrease the overall functionality of the Cloud Service during a Subscription Term (the “Performance Warranty”), and

2. any Professional Services will be provided in a professional and workmanlike manner (the “Professional Services Warranty”).

5.03 Warranty Remedy.

1. Provider will use reasonable efforts to correct a verified breach of the Performance Warranty or Professional Services Warranty reported by Customer.

2. If Provider fails to do so within 30 days after Customer’s warranty report (“Fix Period”), then either party may terminate the Order as relates to the non-conforming Cloud Service or Professional Services, in which case Provider will refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty).

3. To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Cloud Service or 30 days after delivery of the relevant Professional Services (“Claim Period”).

4. The procedures in Section 5.03 are Customer’s exclusive remedies and Provider’s sole liability for breach of the Performance Warranty or Professional Services Warranty.

5.04 Disclaimers. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL CLOUD SERVICES AND DOCUMENTATION ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (A) MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS; (B) OPERATE WITHOUT INTERRUPTION; (C) ACHIEVE ANY INTENDED RESULT; (D) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION; OR (E) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

5.05 Legal Disclaimer. PROVIDER IS NOT A PROVIDER OF LEGAL SERVICES IN ANY CAPACITY WHATSOEVER. CUSTOMER RETAINS SOLE AND ABSOLUTE RESPONSIBILITY FOR THE PROVISION OF LEGAL ADVICE TO ANY PERSONS, WHETHER FACILIATED THROUGH THE CLOUD SERVICES OR NOT.

Article 6 – Usage Rules

6.01 Compliance. Customer (a) will comply with any Acceptable Use Policy (AUP) identified on the Cover Page and (b) represents and warrants that it has all rights necessary to use Customer Data with the Cloud Service and grant Provider the rights to Customer Data specified in this Agreement, without violating third-party IP Rights, privacy rights or other rights. Between the parties, Customer is responsible for the content and accuracy of Customer Data.

6.02 High Risk Activities. Customer:

1. will not use the Cloud Service for High Risk Activities; and

2. acknowledges that the Cloud Service is not designed for (and Provider has no liability for) use prohibited in this Section 6.02.

6.03 Sensitive Data. Customer will establish sufficient privacy and security safeguards for the transmission, use, disclosure, and processing of any Sensitive Data that it uploads to the Cloud Services. Customer acknowledges and agrees that it retains sole and primary authority for the proper carriage of Sensitive Data as a function of Customer’s professional obligations.

6.04 Restrictions. Customer will not and will not permit anyone else to:

1. sell, sublicense, distribute or rent the Cloud Service (in whole or part), grant non-Users access to the Cloud Service or use the Cloud Service to provide a hosted or managed service to others;

2. reverse engineer, decompile or seek to access the source code of the Cloud Service, except to the extent these restrictions are prohibited by Laws and then only upon advance notice to Provider;

3. copy, modify, create derivative works of or remove proprietary notices from the Cloud Service;

4. conduct security or vulnerability tests of the Cloud Service, interfere with its operation or circumvent its access restrictions;

5. input, upload, transmit, or otherwise provide to or through the Cloud Services any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;

6. use the Cloud Service to develop a product that competes with the Cloud Service;

7. use the Cloud Service (or the outputs of the Cloud Service) for the purposes of training any algorithm or artificial intelligence;

8. access or use the Cloud Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any IP Rights or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer), or that violates any applicable law; or

9. access or use the Cloud Services or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, applications, or products, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Cloud Services could lead to personal injury or severe physical or property damage.

Article 7 – Third-Party Platforms

7.01 Customer may choose to enable integrations or exchange Customer Data with Third-Party Platforms. Customer’s use of a Third-Party Platform is governed by its agreement with the relevant provider, not this Agreement, and Provider is not responsible for Third-Party Platforms or how their providers use Customer Data.

Article 8 – Professional Services

8.01 Provider will perform Professional Services as described in an Order or Statement of Work, which may identify additional terms or milestones for the Professional Services. Customer will give Provider timely access to Customer Materials reasonably needed for Professional Services, and Provider will use the Customer Materials only for purposes of providing Professional Services. Subject to any limits in an Order or Statement of Work, Customer will reimburse Provider’s reasonable travel and lodging expenses incurred in providing Professional Services. Customer may use code or other deliverables that Provider furnishes as part of Professional Services only in connection with Customer’s authorized use of the Cloud Service under this Agreement.

Article 9 – Fees

9.01 Payment. Customer will pay the fees described in the Order. Unless the Order states otherwise, all amounts are due within 30 days after the invoice date (the “Payment Period”). Late payments are subject to a charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees and expenses are non-refundable except as expressly set out in this Agreement.

9.02 Taxes. Customer is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than Provider’s income tax. Fees and expenses are exclusive of Taxes.

9.03 Payment Disputes. If Customer disputes an invoice in good faith, it will notify Provider within the Payment Period and the parties will seek to resolve the dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue any available remedies.

Article 10 – Suspension

10.01 Suspension. Provider may suspend Customer’s access to the Cloud Service and related services due to a Suspension Event, but where practicable will give Customer prior notice so that Customer may seek to resolve the issue and avoid suspension.

10.02 No Prior Notice. Provider is not required to give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Law.

10.03 Resolution of Suspension Event. Once the Suspension Event is resolved, Provider will promptly restore Customer’s access to the Cloud Service in accordance with this Agreement.

10.04 Definition. “Suspension Event” means:

1. Customer’s account is 30 days or more overdue;

2. Customer is in breach of ARTICLE 6 (Usage Rules);

3. Customer is in breach of any AUP of the Provider;

4. Provider receives a governmental order that expressly or by reasonable implication requires Provider to suspend the Cloud Services;

5. Customer or any User has failed to comply with any material terms of this Agreement, or accessed or used the Cloud Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation;

6. Customer or any User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or

7. Customer’s use of the Cloud Service risks material harm to the Cloud Service or others.

Article 11 – Term and Termination

11.01 Subscription Terms. Each Subscription Term will last for the period specified in the Order. Each Subscription Term will renew for successive periods unless (a) the parties agree on a different renewal Order or (b) either party notifies the other of non-renewal at least 30 days prior to the end of the current Subscription Term.

11.02 Term of Agreement. This Agreement starts on the Effective Date and continues until the end of all Subscription Terms, unless sooner terminated in accordance with its terms. If no Subscription Term is in effect, either party may terminate this Agreement for any or no reason with notice to the other party.

11.03 Termination. Either party may terminate this Agreement (including all Subscription Terms) if the other party (a) fails to cure a material breach of this Agreement within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

11.04 Data Export & Deletion.

1. During a Subscription Term, Customer may export Customer Data from the Cloud Service (or Provider will otherwise make the Customer Data available to Customer) as described in the Documentation.

2. After termination or expiration of this Agreement, within 60 days of request, Provider may delete Customer Data and each party will delete any Confidential Information of the other in its possession or control.

3. Nonetheless, the recipient may retain Customer Data or Confidential Information in accordance with its standard backup or record retention policies or as required by Law, subject to Section 2.02 (Security) and ARTICLE 15 (Confidentiality).

11.05 Effect of Termination.

1. Customer’s right to use the Cloud Service, Support and Professional Services will cease upon any termination or expiration of this Agreement, subject to this ARTICLE 11.

2. The following Sections will survive expiration or termination of this Agreement: 2.04 (Usage Data), 5.04 (Disclaimers), ARTICLE 6 (Usage Rules), 9.01 (Payment) (for amounts then due), 9.02 (Taxes), 11.04 (Data Export & Deletion), 11.05 (Effect of Termination), ARTICLE 12 (Intellectual Property), ARTICLE 13 (Limitations of Liability), ARTICLE 14 (Indemnification), ARTICLE 15 (Confidentiality), ARTICLE 16 (Required Disclosures), ARTICLE 19 (General Terms) and ARTICLE 20 (Definitions).

3. Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

Article 12 – Intellectual Property

12.01 Reserved Rights. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Provider’s express rights in this Agreement, as between the parties, Customer retains all IP Rights and other rights in Customer Data and Customer Materials provided to Provider. Except for Customer’s express rights in this Agreement, as between the Parties, Provider and its licensors retain all IP Rights and other rights in the Cloud Service, Professional Services deliverables and related Provider technology.

12.01 Feedback. If Customer gives Provider feedback regarding improvement or operation of the Cloud Service, Support or Professional Services, Provider may use the feedback without restriction or obligation. All feedback is provided “AS IS” and Provider will not publicly identify Customer as the source of feedback without Customer’s permission.

Article 13 – Limitations of Liability

13.01 General Cap. Each party’s entire liability arising out of or related to this Agreement will not exceed the General Cap.

13.02 Consequential Damages Waiver. EXCEPT AS PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS 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) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT [OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA; (D) BREACH OF DATA OR SYSTEM SECURITY; OR (E) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE, OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13.03 Exceptions and Enhanced Cap. Sections 13.01 (General Cap) and 13.02 (Consequential Damages Waiver) will not apply to Enhanced Claims or Uncapped Claims. For all Enhanced Claims, each party’s entire liability will not exceed the Enhanced Cap.

13.04 Nature of Claims. The waivers and limitations in this ARTICLE 13 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

13.05 Liability Definitions. The following definitions apply unless modified on the Cover Page.

“Enhanced Cap” means three times (3x) the General Cap. “Enhanced Claims” means Provider’s breach of Section 2.02 (Security)

“General Cap” means amounts paid or payable by Customer to Provider under this Agreement in the 12 months immediately preceding the first incident giving rise to liability.

“Uncapped Claims” means (a) the indemnifying party’s obligations under Article 14 (Indemnification), (b) either party’s infringement or misappropriation of the other party’s IP Rights, (c) any breach of ARTICLE 15 (Confidentiality), excluding breaches related to Customer Data, and (d) liabilities that cannot be limited by Law.

Article 14 – Indemnification

14.01 Indemnification by Provider. Provider, at its own cost, will defend Customer from and against any Provider-Covered Claims and will indemnify and hold harmless Customer from and against any Losses awarded against Customer or agreed in settlement by Provider resulting from the Provider-Covered Claims.

14.02 Indemnification by Customer. Customer, at its own cost, will defend Provider from and against any Customer-Covered Claims and will indemnify and hold harmless Provider from and against any Losses awarded against Provider or agreed in settlement by Customer resulting from the Customer-Covered Claims.

14.03 Indemnification Definitions. The following definitions apply unless modified on the Cover Page.

“Customer-Covered Claim” means a third-party claim arising from Customer’s breach or alleged breach of ARTICLE 6 (Usage Rules).

“Losses” means 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 cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Provider-Covered Claim” means a third-party claim that the Cloud Service, when used by Customer as authorized in this Agreement, infringes or misappropriates a third party’s IP Rights.

14.04 Procedures. The indemnifying party’s obligations in this ARTICLE 14 are subject to receiving from the indemnified party: (a) prompt notice of the claim (but delayed notice will only reduce the indemnifying party’s obligations to the extent it is prejudiced by the delay), (b) the exclusive right to control the claim’s investigation, defense and settlement and (c) reasonable cooperation at the indemnifying party’s expense. The indemnifying party may not settle a claim without the indemnified party’s prior approval if settlement would require the indemnified party to admit fault or take or refrain from taking any action (except regarding use of the Cloud Service when Provider is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

14.05 Mitigation. In response to an infringement or misappropriation claim, if required by settlement or injunction or as Provider determines necessary to avoid material liability, Provider may: (a) procure rights for Customer’s continued use of the Cloud Service, (b) replace or modify the allegedly infringing portion of the Cloud Service to avoid infringement, without reducing the Cloud Service’s overall functionality, or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term.

14.06 Exceptions. Provider’s obligations in this ARTICLE 14 do not apply to claims resulting from (a) modification or unauthorized use of the Cloud Service, (b) use of the Cloud Service in combination with items not provided by Provider, including Third-Party Platforms or (c) Provider Software other than the most recent release, if Provider made available (at no additional charge) a newer release that would avoid infringement.

14.07 Exclusive Remedy. This ARTICLE 14 sets out the indemnified party’s exclusive remedy and the indemnifying party’s sole liability regarding third-party claims of IP Rights infringement or misappropriation covered by this ARTICLE 14.

Article 15 – Confidentiality

15.01 Use and Protection. As recipient, each party will (a) use Confidential Information only to fulfill its obligations and exercise its rights under this Agreement, (b) not disclose Confidential Information to third parties without the discloser’s prior approval, except as permitted in this Agreement and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.

15.02 Permitted Disclosures. The recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Provider, the subcontractors referenced in Section 19.10), provided it remains responsible for their compliance with this ARTICLE 15 and they are bound to confidentiality obligations no less protective than this ARTICLE 15.

15.03 Exclusions. These confidentiality obligations do not apply to information that the recipient can document (a) is or becomes public knowledge through no fault of the recipient, (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser, (c) it rightfully received from a third party without confidentiality restrictions or (d) it independently developed without using or referencing Confidential Information.

15.04 Remedies. Breach of this ARTICLE 15 may cause substantial harm for which monetary damages are an insufficient remedy. Upon a breach of this Article, the discloser is entitled to seek appropriate equitable relief, including an injunction, in addition to other remedies.

Article 16 – Required Disclosures

16.01 The recipient may disclose Confidential Information (including Customer Data) to the extent required by Laws. If permitted by Law, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.

Article 17 – Publicity

17.01 Provider may publicly announce this Agreement without Customer’s prior approval or except as required by Laws; provided however that Provider will provide reasonable notice of any such announcement to Customer

Article 18 – Trials and Betas

18.01 Provider may offer optional Trials and Betas. Use of Trials and Betas is permitted only for Customer’s internal evaluation during the period designated by Provider on the Order. Either party may terminate Customer’s use of Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features never released. Notwithstanding anything else in this Agreement, Provider offers no warranty, indemnity, SLA or Support for Trials and Betas and its liability for Trials and Betas will not exceed US$1,000.

Article 19 – Insurance

19.01 Provider will maintain policies of insurance to comply with any Insurance Requirements Schedule incorporated into this Agreement.

Article 20 – Dispute Resolution

20.01 The parties agree that any dispute or controversy arising out of, relating to, or in connection with this Agreement, or the interpretation, validity, construction, performance, beach or termination thereof (a "Dispute"), will be dealt with in accordance with the remainder of this Article 20. The procedures for the resolution of disputes set out in this Article 20 do not preclude recourse to the courts for interim or interlocutory relief, whether equitable or pursuant to statute or common law.

20.02 An initial meeting will be held between the parties promptly after a Dispute has arisen. This meeting will be attended by the parties’ respective Contract Managers. At the meeting, the parties will attempt in good faith to negotiate a commercially reasonable resolution of the Dispute. No Dispute will be considered resolved until all parties have agreed to the resolution in writing. The Contract Managers will mutually agree on the methods by which they attempt to resolve any Dispute following the initial meeting, such as, for example, telephone, e-mail and fax communications, and/or face to face meetings.

20.03 If within 7 calendar days after the initial meeting referred to in Section 20.02, the parties’ Contract Managers have not succeeded in negotiating a resolution of the Dispute, the Contract Manager of Provider and the Contract Manager of Customer will be notified of the outstanding Dispute. The Contract Managers will then attempt in good faith to negotiate a commercially reasonable resolution of the Dispute .

20.04 In the event that the Contract Managers cannot resolve the dispute within 7 calendar days, or such longer period of time as they may mutually agree, then a meeting of the respective parties’ chief executive officers (or other executive level member with primary authority for this Agreement) will be scheduled to occur within 7 calendar days of the expiration of such time period. The executive officers will then attempt in good faith to negotiate a commercially reasonable resolution of the Dispute.

20.05 In the event that the executive officers cannot resolve the Dispute within 7 calendar days of their meeting, or such longer period of time as they may mutually agree, then either party may submit the dispute or disagreement to arbitration by a single arbitrator in accordance with The Arbitration Act, 1992 (Saskatchewan). The party wishing to commence the arbitration must give the other party a written notice describing the dispute or disagreement to be arbitrated. If the parties do not agree to a single arbitrator, then either party may apply to a judge of the Saskatchewan Court of King’s Bench to appoint an arbitrator.

20.06 The costs and expenses of the arbitration will be allocated by the arbitrator as the arbitrator determines.

20.07 Except where clearly prevented by the nature of a dispute, the parties will continue performing their respective obligations under this Agreement while the dispute is being resolved in accordance with this section unless and until such obligations expire or are lawfully terminated in accordance with the provisions hereof.

Article 21 – General Terms

21.01 Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement, with notice to the other party, in connection with the assigning party’s merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

21.02 Governing Law and Courts. The Governing Law governs this Agreement and any action arising out of or relating to this Agreement, without reference to conflict of law rules. The parties will adjudicate any such action in the Courts and each party consents to the exclusive jurisdiction and venue of the Courts for these purposes.

21.03 Notices.

1. Except as set out in this Agreement, notices, requests and approvals under this Agreement must be in writing to the addresses on the Cover Page and will be deemed given: (1) upon receipt if by personal delivery, (2) upon receipt if by certified or registered mail (return receipt requested), (3) one day after dispatch if by a commercial overnight delivery or (4) upon delivery if by email. Either party may update its address with notice to the other.

2. Provider may also send operational notices through the Cloud Service.

21.04 Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. Excluding Orders, terms in business forms, purchase orders or quotes used by either party will not amend or modify this Agreement; any such documents are for administrative purposes only. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

21.05 Order of Precedence. First any Additional Terms and then Attachments will control in any conflict with these Cloud Service Terms. An Order may not modify any other part of the Agreement unless the Order specifically identifies the provisions that it supersedes.

21.06 Amendments. Any amendments to this Agreement must be in writing and signed (physically or virtually) by each party’s authorized representatives.

21.07 Operational Changes. With notice to Customer, Provider may modify the Support Policy, SLA or Security Measures to reflect new features or changing practices, but the modifications may not be retroactive or materially decrease Provider’s overall obligations during a Subscription Term.

21.08 Waivers and Severability. Waivers must be signed (physically or virtually) by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

21.09 Force Majeure. Neither party is liable for a delay or failure to perform this Agreement due to a Force Majeure. If a Force Majeure materially adversely affects the Cloud Service for 15 or more consecutive days, either party may terminate the affected Order(s) upon notice to the other and Provider will refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. However, this Section does not limit Customer’s obligations to pay fees owed.

21.10 Subcontractors. Provider may use subcontractors and permit them to exercise its rights and fulfill its obligations, but Provider remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

21.11 Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.

21.12 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

21.13 Open Source. Provider Software distributed to Customer (if any) may include third-party open source software (“Open Source”) as listed in the Documentation or by Provider upon request. If Customer elects to use the Open Source on a stand-alone basis, that use is subject to the applicable Open Source license and not this Agreement.

21.14 Export. Each party (a) will comply with all export and import Laws in performing this Agreement and (b) represents and warrants that it is not listed on any U.S. or Canadian government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. or Canadian government embargo or designated by the U.S. or Canada government as a “terrorist supporting” country. Customer will not submit to the Cloud Service any data controlled under the U.S. International Traffic in Arms Regulations.

Article 22 – Definitions

“Acceptable Use Policy” or “AUP” is defined in Section 6.01 (Compliance).

“Additional Terms” means any additions to or modifications of these Cloud Service Terms that the parties specify on the Cover Page.

“Affiliate” means an entity controlled, controlling or under common control with a party, where control means at least 50% ownership or power to direct an entity’s management.

“Agreement” has the meaning given in Section 1.01 (The Agreement).

“Attachments” means any attachments, policies or documents that the parties specify on the Cover Page.

“Cloud Service” means Provider’s proprietary cloud service, as identified in the relevant Order and as modified from time to time. The Cloud Service includes the Provider Software and Documentation but not Professional Services deliverables or Third-Party Platforms.

“Confidential Information” means information disclosed by or on behalf of one party (as discloser) to the other party (as recipient) under this Agreement, in any form, which (a) the discloser identifies to recipient as “confidential” or “proprietary” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Provider’s Confidential Information includes technical or performance information about the Cloud Service, and Customer’s Confidential Information includes Customer Data. Information on the Cover Page is each party’s Confidential Information.

“Cover Page” means a cover page or other document that (a) incorporates these Cloud Service Terms by reference, (b) specifies the Key Terms and any Additional Terms and incorporates any Attachments and (c) is signed (physically or virtually) by Customer and Provider. “Cover Page” explicitly includes any virtual document or process by which Customer enters into a legal relationship with Provider and where such document addresses those items in (a) through (c), as may be obtained through the Cloud Services or Provider’s website.

“Customer” means the party identified as “Customer” on the Cover Page.

“Customer Data” means any data, content or materials that Customer (including its Users) submits to its Cloud Service accounts, including from Third-Party Platforms. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Cloud Services by or on behalf of Customer or any User.

“Customer Materials” means materials and resources that Customer makes available to Provider in connection with Professional Services.

“Dispute” has the meaning given in Section 20.01.

“Documentation” means Provider’s standard usage documentation for the Cloud Service, including, without limitation, any templates, checklists, educational materials, media, or other documentation provided by Provider to Customer.

“Force Majeure” means an unforeseen event beyond a party’s reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party Internet or utility failure, refusal of government license or natural disaster, where the affected party takes reasonable and customary measures to avoid or mitigate such event’s effects.

“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, trojan horse, worm, backdoor, malware, or other malicious computer code, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any: (i) computer, software, firmware, hardware, system, or network; or (ii) application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Customer or any User from accessing or using the Cloud Services as intended by this Agreement.

“High Risk Activities” means activities where use or failure of the Cloud Service could lead to death, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.

“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.

“Key Terms” means Effective Date, Governing Law, Courts or other terms specified by the parties as “Key Terms” on the Cover Page.

“Laws” means all laws, regulations, rules, court orders or other binding requirements of a government authority that apply to a party.

“Order” means an order for Customer’s access to the Cloud Service, Support, Professional Services or related services that is executed by the parties and references this Agreement. An “Order” explicitly includes any virtual consent by Customer to these Cloud Service Terms, as may be obtained through the Cloud Services or Provider’s website.

“Personal Data” means Customer Data relating to an identified or identifiable natural person.

“Professional Services” means training, migration or other professional services that Provider furnishes to Customer related to the Cloud Service.

“Provider” means the party identified as “Provider” on the Cover Page.

“Provider Software” means any proprietary apps or software that Provider distributes to Customer as part of the Cloud Service.

“Resultant Data” means data and information related to Customer's use of the Cloud Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Cloud Services.

“Sensitive Data” means (a) patient, medical or other protected health information regulated by provincial, state, or federal health information protection laws, (b) solicitor-client or attorney-client privileged communications and documentation, (c) credit, debit, bank account or other financial account numbers, (d) social security numbers, driver’s license numbers or other government ID numbers and (e) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation.

“Service Level Agreement” or “SLA” is defined in Section 4.02 (SLA).

“Statement of Work” or “SOW” means a statement of work that is executed by the parties and references this Agreement.

“Subscription Term” means the term for Customer’s use of the Cloud Service as identified in an Order.

“Support” means support for the Cloud Service as described in Section 4.01 (Support).

“Support Policy” is defined in Section 4.01 (Support).

“Third-Party Platform” means any product, add-on or platform not provided by Provider that Customer uses with the Cloud Service.

“Trials and Betas” mean access to the Cloud Service (or Cloud Service features) on a free, trial, beta or early access basis.

“Usage Data” means Provider’s technical logs, data and learnings about Customer’s use of the Cloud Service, including Resultant Data, but excluding Customer Data.

“User” means anyone that Customer allows to use its accounts for the Cloud Service, who may include (a) employees, advisors and contractors of Customer and its Affiliates, (b) clients or customers of Customer which Customer has permitted or authorized to access the Cloud Service, and (c) others if permitted in this Agreement, the Documentation or an Order.

“Virus” means viruses, malicious code or similar harmful materials.

Last Modified August 14, 2023