Last Modified August 1, 2021
1.01 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services as described on the Fidu website (located at https://www.fidulegal.com).
2.01 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.02 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.03 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.01 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees:
(a) to take reasonable precautions to protect such Proprietary Information, and
(b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document
(i) is or becomes generally available to the public, or
(ii) was in its possession or known by it prior to receipt from the Disclosing Party, or
(iii) was rightfully disclosed to it without restriction by a third party, or
(iv) was independently developed without use of any Proprietary Information of the Disclosing Party or
(v) is required to be disclosed by law.
3.02 Company shall own and retain all right, title and interest in and to:
(a) the Services and Software, all improvements, enhancements or modifications thereto,
(b) any software, applications, inventions or other technology developed in connection with Implementation Services or support,
(c) all intellectual property rights related to any of the foregoing; and
(d) all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.
3.03 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to:
(a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and
(b) disclose such data solely in aggregate or other de identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.04 Upon request by Customer made within 90 days after the effective date of termination or expiration of the Agreement, Company will make any Customer Data in Company’s possession or control available to Customer for export or download in JSON/BSON/PDF, or similar open source format as reasonably agreed between the parties. After such 90-day period, Company will have no obligation to maintain or provide any Customer Data and will delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
4.01 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.02 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than Canadian taxes based on Company’s net income.
5.01 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.02 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.01 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, company does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
6.02 Customer will comply with all Applicable Laws which are applicable to Customer, its businesses, or its use of the Services, including all Applicable Laws relating to the issuance and transfer of securities or relating to the use of electronic signatures (collectively, the “Customer Regulatory Requirements ”). Customer acknowledges that Company is not providing any legal advice on Customer Regulatory Requirements. Without limiting the generality of the above, Customer acknowledges that the Services include functionality relating to the use of electronic signatures and that Customer’s use of the electronic signature functionality may be subject to restrictions or limitations under Applicable Laws (for example, electronic signatures may not be permitted for certain types of documents, such as wills or land transfers, or may be subject to additional restrictions or requirements). For the avoidance of doubt, Company is not responsible for, and Customer is solely responsible for, compliance with Customer Regulatory Requirements and making an independent determination as to whether the Services satisfy Customer Regulatory Requirements. Notwithstanding any other provision of the Agreement, Customer will not hold Company responsible for any losses or claims arising from or relating to any failure to comply with Customer Regulatory Requirements. For purposes of this Agreement, “Applicable Laws” means, in respect of any person, property, transaction or event, all applicable Canadian or foreign federal, provincial, state, municipal or local government laws, statutes, rules, by-laws and regulations, and all applicable official rules, policies, notices, directives, orders, judgments and decrees of any governmental authority, all as amended from time to time.
6.03 Customer acknowledges and agrees that any documents uploaded to the Service are the sole responsibility of Customer and that Company makes no representations or warranties of any kind relating to the legal validity, enforceability, or accuracy of those documents. Both Customer and Company specifically acknowledge and agree that in no case will Company provide any legal advice to Customer or any other person whatsoever.
7.01 Notwithstanding anything to the contrary, except for bodily injury of a person, company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory:
(a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business;
(b) for any indirect, exemplary, incidental, special or consequential damages;
(c) for any matter beyond company’s reasonable control; or
(d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by Customer to Company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.
7.02 IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, FAILURE TO REALIZE EXPECTED SAVINGS, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, COVER, BUSINESS INTERRUPTION OR DOWNTIME COSTS, THIRD-PARTY DAMAGES (INCLUDING ANY SERVICE LEVEL CREDITS PAYABLE BY CUSTOMER OR ANY OTHER PERSON), LOSS OF DATA, OR PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
8.01 Company will implement and maintain appropriate technical and organizational measures, as determined by Company, designed to protect the security of Customer Data, including:
(a) measures designed to protect Customer Data from unauthorized access, use, modification, deletion, loss or disclosure; and
(b) deployment of standard encryption and security protocols made available from time to time by the Company’s data center service provider.
(a) Company will report to Customer any material security breach or other event where there is an actual material loss, theft, unauthorized access, acquisition, use, disclosure, alteration, or destruction of or to Customer Data within the possession or control of Company, or a significant risk of any of them (a “Security Incident”) promptly following determination by Company that a Security Incident has occurred, and in any event within 24 hours following such determination. The initial report will be made to the security contacts designated by Customer from time to time. Customer acknowledges that the Services are provided from the data centers of the Company’s data service provider, and that Customer relies and depends on the Company’s data service provider providing notice to Customer of Security Incidents relating to those data centers.
(b) Company will investigate the Security Incident. Company will provide Customer with detailed information about the Security Incident to the extent reasonably possible and to the extent known. Company will take reasonable steps within its systems to mitigate the effects of the Security Incident. Company will use commercially reasonable efforts to provide to Customer the information required by Customer to fulfil any obligations under Applicable Laws to notify Customer regulators and data subjects of the Security Incident.
9.01 Company will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Services infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Company in writing of, a Claim Against Customer, provided Customer:
(a) promptly gives Company written notice of the Claim Against Customer;
(b) gives Company sole control of the defense and settlement of the Claim Against Customer (except that Company may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and
(c) gives Company all reasonable assistance, at Company’s expense.
If Company receives information about an infringement or misappropriation claim related to the Services, Company may in its discretion and at no cost to Customer:
(d) modify the Services so that they are no longer claimed to infringe or misappropriate, subject to Company’s warranties under Article 6,
(e) obtain a license for Customer’s continued use of the Services in accordance with the Agreement, or
(f) terminate Customer’s subscriptions for that Service on 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions.
The defense and indemnification obligations in this Section 9.01 do not apply to the extent a Claim Against Customer arises from:
(g) Third party content or a Non-Company application;
(h) Customer’s breach of this Agreement or the Policy;
(i) use or combination of the Services with any other product or service without Company’s express written approval;
(j) modification of the Services or any component without Company’s express written approval; or
(k) use of the Services for any purpose or in any manner other than as specifically contemplated by the Agreement, without Company’s express written approval.
9.02 Customer will defend Company against any claim, demand, suit or proceeding made or brought against Company by a third party:
(a) alleging that any Customer Data infringes or misappropriates such third party’s intellectual property rights or other rights; or
(b) arising from Customer’s use of the Services, third party content or the Software in breach of this Agreement or Applicable Laws; or
(c) arising from any fraud or intentional misconduct by Customer or any personnel of Customer, its affiliates or its or their contractors or service providers (each a “Claim Against Company”); and will indemnify Company from any damages, attorney fees and costs finally awarded against Company as a result of, or for any amounts paid by Company under a settlement approved by Customer in writing of, a Claim Against Company, provided Company:
(d) promptly gives Customer written notice of the Claim Against Company;
(e) gives Customer sole control of the defense and settlement of the Claim Against Company (except that Customer may not settle any Claim Against Company unless the settlement unconditionally releases Company of all liability); and
(f) gives Customer all reasonable assistance at Customer’s expense.
10.01 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.02 This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
10.03 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
10.04 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
10.05 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.06 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.07 The Agreement, and any disputes arising out of or related to the Agreement, will be governed exclusively by the internal laws of the Province of Saskatchewan and the laws of Canada applicable in the Province of Saskatchewan, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The provincial and federal courts located in Saskatoon, Saskatchewan will have exclusive jurisdiction over any disputes arising out of related to the Agreement, and each party consents to the exclusive jurisdiction of those courts.
10.08 Each party will obtain the other party’s prior written consent before making any public communication related to the Agreement or the Services. Notwithstanding the above:
(a) Company may issue a press release announcing the relationship between Customer and Company. Customer will have the right to review and approve the press release prior to distribution; and
(b) Company may list Customer as a customer of Company on the Company website and on other Company sales and promotional materials and may use Customer’s logos for that purpose. Any Company use of Customer’s logos will be subject to any applicable trademark use guidelines provided by Customer to Company.
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