These ClearDent General Terms and Conditions (“Terms”) form a legal agreement between Prococious Technology Inc. (“PTI”, “we”, “us” and “our”) and “Customer”, being the individual, company, organization or other legal entity subscribing to our Products (also referred to as “you” and “your”). If you enter into an Order or these Terms on behalf of a Customer that is company, organization or other legal entity, you agree that you have the authority to bind the Customer to these Terms.
These Terms govern: (a) your use of the ClearDent software described in your Order (the “Software”), including the associated graphical interface, images, design materials, and schema design, that you license on a one-time and/or subscription basis, including any updates and upgrades to that Software; (b) your use of the ClearDent software-as-a-service products described in your Order (the “Cloud Services”), provided to you on a subscription basis; (c) any support and maintenance services we provide in respect of the Software or Cloud Services (the “Support Services”); and (d) any professional services described in an Order, such as installation, implementation, training, Data Migration, project management and other consulting services, and all deliverables described in that Order (collectively, the “Professional Services”). The Software and Cloud Services are collectively referred to as our “Products”.
By submitting or signing an online or hard order form (each, an “Order”) for one or more of our Products, clicking a box indicating your acceptance of these Terms, installing, accessing or using our Products, allowing any person to install, access or use our Products or entering into a statement of work or other document for us to provide Professional Services, you agree to be bound by these Terms. If you have been invited to use one of our Products by your employer, a business or another person, the “User Terms” govern your access to and use of those Products.
If you are not of the age of majority in your place of residence, do not agree with these Terms or otherwise do not have the authority to enter into these Terms, you must not access or use our Products.
1.1 Your Software License Rights. Subject to your compliance with these Terms, we hereby grant you a non-exclusive, non-sublicensable non-transferrable license during the Subscription Term to install and use the Software in executable code form, and permit Users to use the Software, for your own internal business purposes in accordance with these Terms, your Subscription Entitlement and applicable laws.
1.2 Access to Cloud Services. If your use of the Software requires or permits you to access and use a Cloud Services, such access and use is subject to Section 2 below.
2.1 Using our Cloud Services: Subject to your compliance with these Terms, we hereby grant you a non-exclusive, non-transferrable, revocable right during the Subscription Term to access and use the Cloud Services for your internal business purposes in accordance with these Terms, your Subscription Entitlement and applicable laws.
2.2 Using our Mobile Applications: Subject to your compliance with these Terms and solely during the Subscription Term, you have the limited, non-exclusive, non-transferrable and revocable right to download, install and use our mobile applications to access and use the Cloud Services.
2.3 Changes to the Cloud Service: We may update the Cloud Services from time to time. We use commercially reasonable efforts to ensure that our updates will not materially reduce the level of performance, security or availability of the Cloud Services. Any updates to the Cloud Services are subject to these Terms. You acknowledge and agree that you have not based your purchasing decision on the future availability of any new products and/or additional features, components or versions of the Cloud Services, nor on any oral or written comments made by us regarding future functionality or features.
3.1 Your Subscription Entitlement: Your installation, access and use of our Products (as applicable) is limited to the specified number of units that are included in your Order (the “Subscription Entitlement”). These may include, by way of example, the number of software licenses, workstations, named users, computers, data storage capacity or other applicable metric described in your Order. Your actual usage of our Products may not exceed your Subscription Entitlement at any time. If you wish to increase your use of one or more of our Products, you must first increase your Subscription Entitlement by purchasing additional units.
3.2 Verification and Overages. For our Software, we may periodically ask you to provide us with assistance to verify your usage of the Software and compliance with your Subscription Entitlement. Upon receiving our verification request, you will provide us with reasonable access to the Software installed at your premises. If our verification shows that you have exceeded your Subscription Entitlement or are using Products for which you do not have a current subscription, we may immediately invoice you for the overage and/or additional Products at our then-current Subscription Fees starting from the first date on which the overage or additional Product usage occurred.
3.3 Users. You are responsible for ensuring that all individuals that you authorize to use our Products, including employees, contractors, customers, clients or other end users (collectively, “Users”), comply with these Terms and the User Terms. We may, but have no obligation to, review your conduct and that of your Users for compliance purposes.
3.4 User Accounts. Each User will be identified using unique login information for the Products, for example a username and password, which may only be used by one individual. You and your Users are solely responsible for maintaining the confidentiality of the login information. Unless you notify us of any unauthorized use or suspicious activity in connection any of your Product accounts, you are responsible for all activities that occur under your account and those of your Users. We will not be liable for any loss or damages that you may incur as a result of someone else using your or a Users’ account, with or without your knowledge.
3.5 Your use of our Products: You agree not to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit our Products, or make our Products available to any third party, other than to Users or as otherwise permitted by these Terms; (b) use our Products to process data on behalf of any third party other than your Users; (c) permit any third party not authorized by us to access, use, modify, support, adapt or repair our Products; (d) modify, adapt or hack our Products or otherwise attempt to gain or gain unauthorized access to our Products or related systems or networks; (e) use our Products in any unlawful manner, including in violation of any applicable export laws and regulations; (f) use our Products to send unsolicited communications, junk mail, spam or other forms of duplicative or unsolicited messages; (g) use our Products to store or transmit any content that infringes, violates or misappropriates any person’s intellectual property rights; (h) use the Cloud Services in any manner that interferes with or disrupts the integrity or performance of the Cloud Services and its components; (i) attempt to decipher, decompile, reverse engineer, disassemble, reproduce, copy or otherwise access or discover the source code or underlying program of any software contained in our Products; (j) use our Products to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory or any viruses, malware, Trojan horses, time bombs, or any other similar harmful software. Without limiting your other obligations under these Terms, you are solely responsible for ensuring that your use of our Products, including to store and transmit Your Data, complies with all applicable laws and regulations.
3.6 Loss of Data: You will be responsible for any loss of data or attempted or actual access or use of the Products through any account associated with your subscription in violation of these Terms.
3.7 Unauthorized Use: If we inform you that a specified activity or purpose is prohibited with respect to the Products, you will immediately cease using the Products for such prohibited activity or purpose.
4.1 Product Ownership: All right, title and interest in and to the Products, derivatives of the Products and anything developed and delivered by or on behalf of us in the performance of the Professional Services or our other obligations under these Terms (collectively, the “Deliverables”), including methodologies, know-how, source and object code, specifications, configurations, designs, architecture, processes, techniques, concepts, discoveries and inventions and all derivatives thereof, will belong to and remain exclusively with us and our licensors. All rights not expressly provided to you under these Terms are reserved. To the extent that the foregoing ownership rights are not effective for any reason, you hereby grant, and agree to grant, to us a perpetual, worldwide, irrevocable, royalty free, transferrable, sublicenseable license to use, modify, copy or otherwise exploit all of Deliverables for any and all purposes.
4.2 Your Data: As between the parties, you will retain ownership of and all intellectual property rights in and to the data, personal information, text, images, audio and other content and material provided to use by you or your Users to Licensor in connection with these Terms (collectively, the “Your Data”), including Your Data that is stored in, submitted to or run on or through our Products. You must not permit any third party to access Your Data stored in the Products without our prior authorization, unless that access occurs in a manner approved by us, such as via our APIs.
4.3 Right to Use Your Data: You hereby grant (and agree to grant) to us a worldwide, non-exclusive, limited right and license to host, use, process, display, export and transmit Your Data: (a) to provide the Products; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted by you or your Users in writing. You are solely responsible for the quality, integrity, legality, reliability and appropriateness of Your Data and for obtaining all rights, authorizations and consents required by us to provide the Products to you and otherwise process Your Data, including rights in and to Your Data from your Users and others.
4.4 Consent to Data Use: By subscribing to one of our Products, you acknowledge and agree that we may collect and use technical data and related information, including technical information about your devices, systems, application software and peripherals, which is gathered periodically by us to provide you with updates, product support and other services relating to those Products. We may use this information for usage data analysis and other statistical purposes to improve our Products, develop new products and to provide you with enhanced services or technologies.
4.5 Feedback and Suggestions: If you or your Users send us any feedback or suggestions regarding our Products, Professional Services or Support Services, you hereby grant and will grant to us, or will obtain for us from your Users, an unlimited, irrevocable, perpetual, sublicensable, transferrable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation to you or your Users.
Certain third parties authorised by us may develop applications and software that integrate with our Products or complement your use of our Products (“Other Services”). These Other Services are not part of our Products, Professional Services or Support Services and may be governed by their own terms and privacy policies. By using Other Services, you acknowledge and agree that: (a) we are not responsible for your use of these Other Services; (b) we do not provide any warranties or support for Other Services; and (c) we are not liable for any damage or loss caused or alleged to be caused by or related to your access or use of any such Other Services, or your reliance on the privacy practices, data security processes or other policies of such Other Services.
6.1 Support and Updates. Subject to your compliance with these Terms, including payment of all Subscription Fees, we will provide the following Support Services during the Subscription Term for the Products:
(a) technical support and maintenance for our Products for your day to day operational inquiries through the contact methods listed on our website. Technical support and maintenance does not include on-site services, including but not limited to installation, implementation, training, testing of the Products or data conversion or migration;
(b) updates, including system enhancement and bug fixes to the Products;
(c) upon your request, up to two Saturday emergency support calls per year during the Subscription Term for up to two hours in duration per incident. Additional support hours will be charged at our then-current support rates; and
(d) access to Internet self-help support posted on our website during our website accessibility hours.
We will use commercially reasonable efforts to address and solve your support requests but do not guarantee resolution or satisfaction in every case. We may suspend any Support Services if you are not in compliance with these Terms, including payment of Subscription Fees.
6.2 Support Hours. The Support Services are available during the hours listed on our website.
6.3 Software Updates. During the Subscription Term, we may provide you, and you are responsible for installing, Software updates, which may include corrections, enhancements, upgrades and improvements of Software components included in your subscription. You are not entitled to receive or use components or modules that are not included in your Software subscription, unless you purchase an additional subscription for those components or modules. The Support Services are only offered for Software that updated to the most recent version. For Software versions other than the most recent, we may, in our sole discretion, provide Support Services if solutions are available, but will not provide support where the issue has been resolved in a more recent version of the Software.
6.4 Termination of Support. The Support Services will terminate on the date that your subscription or license for the Products expires.
7.1 Professional Services. If you enter into an Order for Professional Services, we will perform the Professional Services described in that Order. All Professional Services will be charged on a time and materials basis unless otherwise stated in your Order. We will control the manner in which the Professional Services are performed, including resource and staff allocation. In connection with the Professional Services, we hereby grant to you a non-exclusive, non-sublicensable, non-transferrable license to use any Deliverables we provide to you solely in connection with the Products for which you have a current subscription or license.
7.2 Your Responsibilities. In order to facilitate our provision of the Professional Services, you will provide us with access to all information, files, documentation, test data, sample outputs, computer facilities, programs, office facilities, equipment and other assistance reasonably requested by us in performing the Professional Services.
7.3 Your Project Contact. You agree to appoint a person as a single point of contact (SPOC) to facilitate our provision of the Professional Services. You may change the SPOC individual by providing us notice in writing.
7.4 Expiry of Professional Services. In some instances, Professional Services may be included with your Product subscription or we may allow you to pre-purchase certain Professional Services by the hour (for example, 10 hours of training) or a different metric described in the applicable Order. All Professional Services must be used or redeemed by you before the specified expiry date set out in your Order. If no expiry date is stated in your Order, all Professional Services that you order, or that are included with your Product subscription, will expire 12 months from the date of the applicable Order.
8.1 Fees: All fees (the “Fees”) for Products and Professional Services requested by you under an Order are payable in accordance with Section 8.2, and include the following:
(a) Fees for your subscription to our Products (“Subscription Fees”), which are due in full and payable in advance at the time when you subscribe to the Products. In the event that we identify any overages or additional Product usages as described in Section 3.2, the applicable Subscription Fees will be invoiced to you on a monthly basis until the end of the then-current Subscription Term, after which they will be included in the Subscription Fees payable for any renewal of the Subscription Term;
(b) Fees for any one-time product licenses or purchases (“One-Time Fees”), which are due in full and payable upon completion of installation and/or activation of the applicable Product on a device; and
(c) Fees for Professional Services (“Professional Services Fees”), which are due in full and payable in advance of us providing those Professional Services. If there is a change to the Professional Services that requires an increase to the Professional Services Fees, such as a request for additional Professional Services, delays caused by you or a change in scope of previously requested Professional Services, those additional Professional Services Fees are due in full and payable immediately upon us issuing an invoice for those additional Professional Services Fees to you.
Unless specified otherwise in your Order, the Subscription Fees are payable in full until you terminate your Product subscription in accordance with Section 9. Except as expressly provided in these Terms, all Subscription Fees and Professional Services Fees are non-refundable and your Product subscription is non-cancellable during your current Subscription Term.
8.2 Expenses. Any reasonable travel and other out-of-pocket expenses that we incur during or related to the performance of our obligations under these Terms, including in connection with the performance of Professional Services, will be invoiced to you and are due in full and payable upon your receipt of such invoice.
8.3 Payment methods: You may pay the Fees and expenses by any of the following methods:
(a) pre-authorized credit card payment, in which case your credit card will be charged automatically on the invoice due date;
(b) self-pay credit card payment, which requires you to pay any fees on or before the invoice due date via our secure online payment portal;
(c) cheque or wire-transfer, which you must ensure is received on or before the invoice due date; or
(d) pre-authorized debit, in which case your selected bank account will be debited on the invoice due date.
You are subject to any applicable terms, conditions, restrictions and other requirements of any payment provider related to your chosen payment method and are solely responsible for any transaction fees, insufficient fund charges or any other fee or charge that is assessed by a payment provider in connection with your use of such payment method.
8.4 Late Payments/Non-payment of Fees: We will notify you if we do not receive payment of the Fees or expenses by the due date. For payments made through credit cards and pre-authorized debit, we must receive payments within 5 days from the invoice due date and for payments through other accepted methods, we must receive payments within 15 days from the invoice due date. If we do not receive payment within those time periods, in addition to other remedies available under law, we may: (a) unless otherwise specified in your Order, charge an interest for late payment at 2% per month; (b) suspend your access to and use of the Products or Support Services, or cease performing the Professional Services, until we receive your payment; and/or (c) terminate your Product subscription or any Order for Professional Services.
8.5 Upgrades and Downgrades: If you subscribe for one of our Products, you will not be permitted to cancel your subscription, reduce your Subscription Entitlement or downgrade your Product subscription until the end of your then-current Subscription Term. Any request to cancel, reduce your Subscription Entitlement or downgrade your Product subscription must be provided to us in writing at least 30 days prior to the end of your then-current Subscription Term. If you wish to upgrade the Product subscription or increase your Subscription Entitlement, you will be required to pay the applicable Fees for that upgrade or additional Subscription Entitlement.
8.6 Applicable Taxes: The Fees and other amounts required to be paid under these Terms do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are solely responsible and liable for paying the Taxes that would be levied against you by government authorities. We will invoice you for Taxes if we believe we have a legal obligation to do so and you agree to pay Taxes invoiced to you. Should any payment for the Product subscription be subject to withholding tax by any government authority, you will promptly reimburse us for the full amount of such withholding tax. This provision does not apply to our income or franchise taxes.
8.7 User Benefits: We may, at our sole discretion, offer you certain benefits such as discounts on Fees or extensions in your Subscription Term for no extra payment from you. These benefits are specific to your subscription and are not transferrable, including to a Customer’s subscription at a different location or separate subscription for a different Product. The benefits may have a specified expiry date and, if not, they will expire 12 months from their date of offer.
9.1 Subscription Term and Renewal: Your subscription for the Product(s) is for the period described in your Order (“Subscription Term”). Unless you notify us in writing that you no longer wish to receive the Product(s) at the end of your current Subscription Term, your subscription will automatically renew for a further Subscription Term equivalent in length to the then-expiring Subscription Term, up to a maximum renewal period of 1 year. For example, if your subscription is monthly, it will automatically renew for a further month at the end of each month, but if your initial Subscription Term is 3 years, it will renew for further 1 year periods. Unless otherwise provided for in your Order, the Subscription Fees for any subsequent Subscription Term will be our standard Subscription Fee for the applicable Product at the time the renewed Subscription Term starts. You acknowledge and agree that, unless you terminate your subscription in accordance with this Section 9, the Subscription Fees for subsequent Subscription Terms will be charged automatically to your credit card or otherwise invoiced to you if you pay through a different accepted payment method.
9.2 Suspension and Termination by Us: In addition to suspension for late or non-payment of Fees, we may immediately suspend your access to and use of the Products, or cease providing you with Professional Services, if you or any of your Users violate these Terms. We will notify you of any activities that violate these Terms and, at our sole discretion, may provide you with a period of 15 days to cure or cease such activities. If we provide with a cure period and you do not cure or cease such activities within the above cure period, or if we believe that your breach of these Terms cannot be cured, you must immediately cease using the Products and Deliverables, and your account and access to the Products will be terminated. We may terminate your subscription or any Order for Professional Services immediately on notice to you if we reasonably believe that the Products or Deliverables are being used by you or your Users in violation of applicable law.
9.3 Termination by You for Cause: You may terminate your subscription or Order for Professional Services if we materially breach these Terms and have not cured that breach within 30 days after you have provided written notice to us of the breach.
9.4 Termination by You without Cause: If you no longer wish to use the Products, you can terminate your subscription without cause by providing us with at least 30 days prior written notice at [email protected] and by signing a cancellation form that we will provide to you.
9.5 Effect of Termination: Following expiry or termination of these Terms, the following provisions will apply:
(a) Charges: If you terminate your subscription prior to the end of your current Subscription Term or we terminate your subscription under Section 9.2, you must immediately pay any outstanding amounts that you owe to us and you will not be entitled to receive a refund for any Fees that you prepaid to us for Products for the period following the effective date of termination. For example, if your annual Product subscription starts on January 1st and you decide to terminate your subscription on August 1st, you will not receive a refund for the Fees you paid for the period from August 1st until December 31st. If you terminate your subscription for cause, we will refund you any prepaid Subscription Fees covering the remainder of the Subscription Term after the effective date of termination. If you terminate an Order for Professional Services before those services are complete, you will immediately pay us for all work performed and Deliverables provided up to the date of termination.
(b) Data Export: We strongly recommend that you export all Your Data from any Cloud Services before you terminate your subscription or the subscription expires. Following such termination, Your Data will be retained in our Cloud Services for a period of 30 days from such termination within which you may contact us to export Your Data (“Data Retention Period”), after which Your Data will be deleted in the normal course of operation and will not be recoverable. You may request us to export Your Data that is stored in the Cloud Services to you at any time before the end of the Data Retention Period.
9.6 Survival: The respective rights and obligations of you and us under the provisions of Sections 3, 4, 8, 9, 10, 13, 14, 15, 16 and 17 will survive termination of these Terms.
10.1 Account Credentials: If you choose, or are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat that information as confidential. We reserve the right to disable any user identification code, account or password, whether chosen by you or allocated by us, at any time if, in our reasonable opinion, you have failed to comply with any of the provisions of these Terms.
10.2 Confidential Information: As used in these Terms, “Confidential Information” means all information disclosed, accessed or obtained by one party (“receiving party”) by or on behalf of the other party (“disclosing party”), whether verbally, electronically or otherwise and either before or after the effective date of these Terms, which is: (a) identified by the disclosing party as confidential at the time of disclosure; or (b) that a reasonable person would consider confidential due to its nature and circumstances of disclosure, and includes any information generated by the receiving party to the extent that it contains, reflects, or is derived from Confidential Information. Our Confidential Information includes, without limitation, our Products and Deliverables. Confidential Information does not include information which the receiving party can document: (i) was in the possession of or known by it without an obligation of confidentiality prior to receipt from the disclosing party; (ii) is or becomes general public knowledge through no fault or acts of the receiving party; (iii) is or becomes lawfully available to the receiving party from a third party without an obligation of confidentiality; or (iv) is independently developed by the receiving party without use of any Confidential Information.
10.3 Protection of Confidential Information: Except as expressly permitted in these Terms, Confidential Information of the disclosing party may not be copied, reproduced, or distributed by the receiving party, and the receiving party will not sell, lease, license, assign, transfer, or disclose the Confidential Information of the disclosing party to any third party. The receiving party will protect Confidential Information of the disclosing party by using the same degree of care (but no less than a reasonable degree of care) as it uses to safeguard its own confidential or proprietary information of a similar nature from unauthorized use, disclosure, or dissemination, including, without limitation, securing all servers, drives or media on which the Products are installed or maintained. The receiving party agrees to restrict access to Confidential Information of the disclosing party to only its employees, agents or contractors who: (a) require such access in the course of their assigned duties and responsibilities; (b) have been informed of the receiving party’s obligations of confidence; and (c) have agreed in writing to preserve the confidentiality of such information under terms and conditions no less restrictive than those set out in these Terms. The receiving party will enforce such obligations unless otherwise authorized in writing by the disclosing party. Each party agrees to immediately notify the other party of any authorized access to or disclosure of Confidential Information.
10.4 Permitted Disclosure: In the event that any Confidential Information of the disclosing party is required to be disclosed pursuant to any bona fide law, regulation or court order, the receiving party will give the disclosing party immediate notice of such obligation and will use commercially reasonable efforts to provide the disclosing party with an opportunity to take such steps as it desires to challenge or contest such disclosure or seek a protective order. Thereafter, the receiving party may disclose the Confidential Information, but only to the extent required by applicable law and subject to any applicable protective order.
10.5 Security of Your Data: We use appropriate physical, technological and organizational measures to protect Your Data. The measures we use are designed to provide a level of security appropriate to the risk of processing Your Data.
During the Subscription Term, you may request us to import data into your account (“Data Migration“) by entering into a separate Order with us. You hereby acknowledge and agree that we may access and process Your Data in connection with performing such Data Migration. All assistance with Data Migration is considered to be Professional Services and requires payment of associated Professional Services Fees.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS, INCLUDING ANY WEBSITES THAT MAKE THE PRODUCTS AVAILABLE, DELIVERABLES AND ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. WE EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, WARRANTIES OR OTHER TERMS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE OR ARISING BY COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR PERFORMANCE.
YOU ACKNOWLEDGE THAT WE DO NOT REPRESENT OR WARRANT THAT THE CLOUD SERVICES OR ASSOCIATED WEBSITES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE AND YOU FURTHER ACKNOWLEDGE THAT WE DO NOT REPRESENT OR WARRANT THAT THE ACCESS TO THE CLOUD SERVICES, WHICH ARE PROVIDED OVER THE INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER THE PRODUCTS, DELIVERABLES AND THE INFORMATION PROVIDED THROUGH OR GENERATED BY THE PRODUCTS IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. WE ASSUME NO RESPONSIBILITY, AND ARE NOT LIABLE FOR, ANY DAMAGE TO YOUR COMPUTER EQUIPMENT, DATA OR OTHER PROPERTY ON ACCOUNT OF YOUR INSTALLATION OF, ACCESS TO, USE OF OR BROWSING ON OUR PRODUCTS OR YOUR DOWNLOADING OF ANY SOFTWARE OR MATERIAL, OR INABILITY TO DO ANY OF THE FOREGOING.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO ANY PERSON UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY), BREACH OF STATUTORY DUTY OR OTHERWISE, FOR THE FOLLOWING TYPES OF LOSS OR DAMAGES UNDER OR IN CONNECTION WITH THESE TERMS, EVEN IF WE HAVE BEEN ADVISED AS TO THE POSSIBILITY OF, OR COULD HAVE FORESEEN, SUCH LOSS OR DAMAGES IN ADVANCE: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES; AND (B) WHETHER DIRECT OR INDIRECT, LOSS OF REVENUE, INCOME, PROFIT, SAVINGS OR SHARE VALUE, LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEMS, PROGRAMS, NETWORKS OR HARDWARE (OR THE RECOVERY OF SUCH) OR LOSS OF GOODWILL. WE WILL NOT BE LIABLE TO YOU FOR DAMAGES FOR ANY CAUSE RELATED TO OR ARISING OUT OF REPUTATIONAL LOSSSES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, FOR ANY CAUSES OF ACTION, LOSSES AND DAMAGES ARISING OUT OF OR RELATING TO THE PRODUCTS, PROFESSIONAL SERVICES, SUPPORT SERVICES OR THESE TERMS, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES AND CHARGES ACTUALLY PAID BY YOU TO USE UNDER THE APPLICABLE ORDER IN THE 6 MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT, TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE OUR PRODUCTS AND DELIVERABLES IN ACCORDANCE WITH THESE TERMS, WE HAVE LIMITED OUR POTENTIAL LIABILITY AND ALLOCATED RISKS BASED ON THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET OUT IN THESE TERMS.
IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
15.1 Indemnification by Us: We will defend any claim against you that a Product or Deliverable infringes any Canadian patent, trademark, copyright or other intellectual property right of a third party and will indemnify you against any damages finally awarded against you by a court of final appeal, or agreed in a settlement by us and attributable to such claim, provided that you: (a) give us prompt written notice of any such claim; (b) provide reasonable assistance and information to enable us to defend the claim; (c) allow us to control defense of the claim; and (d) have not compromised or settled the claim. If that Product or Deliverable is found to infringe such third party’s rights, or if we determine in our sole discretion that it is likely to be found to infringe, then we may, at our option: (i) obtain the right for you to continue to use the Product or Deliverable; (ii) modify the Product or Deliverable to make it non-infringing or replace it with a functionally equivalent substitute Product or Deliverable, in which case you will stop using the infringing version of the Product or Deliverable; or (iii) terminate each party’s rights and obligations under these Terms as it relates to the infringing Product or Deliverable (or these Terms in its entirety) and refund to you a pro-rata portion of the Fees paid to us by you under these Terms.
15.2 Exclusions from Our Indemnity: Our indemnification obligations under Section 15.1 will not apply if the infringement is caused in whole or in part by: (a) use of a Product or Deliverable in a manner not in accordance with its specifications or documentation; (b) modifications or enhancements to a Product or Deliverable not made by us or on our behalf; (c) the combination, operation or use of a Product or Deliverable with products, software or devices not provided by us where that Product or Deliverable would not by itself be infringing; (d) compliance with designs, data, instructions or specifications provided by you; (e) Your Data or Other Services; or (f) use of an allegedly infringing version of a Product or Deliverable if the alleged infringement could be avoided by the use of a different version of the Product or Deliverable made available to you.
15.3 Sole Remedy: Sections 15.1 and 15.2 states our entire liability with respect to infringement of patents, copyrights, trademarks or other intellectual property rights. Our obligations under those Sections specifically exclude any obligations with respect to any patent, copyright, trademark or other intellectual property right outside of Canada.
15.4 Indemnification by You: You will indemnify and hold us harmless against any claim brought by a third party against us or our affiliates, and our respective employees, officers, directors and agents, arising from or related to use of the Products or Deliverable by you or your Users or matters which you have expressly agreed to be responsible under these Terms, provided that we promptly notify you of the threat or notice of such a claim.
16.1 Records: You will maintain accurate business records relating to your access to and use of the Products and Deliverables. Upon our request, you will promptly, and in any event within 30 days, provide us with evidence reasonably necessary to confirm your compliance with the provisions of these Terms.
16.2 Audit: We will have the right, not more than once every 12 months and upon 5 business days prior written notice, to verify you compliance with your obligations under these Terms by auditing, either ourselves or through an independent third party auditor retained by us, your business records and access to and use of the Products or Deliverable. We or our third party auditor will perform the audit during your regular business hours and comply with your reasonable safety and security policies and procedures. Your will provide reasonable assistance and cooperation with such audit. If you are found to be in material non-compliance with these Terms, you will pay the reasonable expenses incurred by us associated with the audit and will promptly take measures to come into compliance. If you are found to have unauthorized deployments of the Products and/or excess usage, you will be invoiced any additional Subscription Fees at our then-current list price. Our rights under this Section 16 will survive for one year following termination or expiration of these Terms.
17.1 Independent Contractors. Each party to these Terms is and will at all times remain an independent contractor to the other party. At no time will either party be deemed to be the agent or employee of the other party, and no joint venture, partnership, agency or other similar relationship will be created or implied by virtue of these Terms.
17.2 Severability: If any provision in these Terms is at any time unenforceable or invalid for any reason it will be severable from the remainder of these Terms, and, in its application at that time, these Terms will be construed as though such provision was not contained herein and the remainder will continue in full force and effect and be construed as if these Terms had been executed without the invalid or unenforceable provision.
17.3 Notices: All notices to be provided by us to you under these Terms may be delivered in writing via: (a) email; (b) mail (registered or certified, postage prepaid with receipt requested); (c) courier; or (d) personally. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, 2 business days after being deposited in the mail or dispatched by courier.
17.4 Section Headings: The section and subsection headings in these Terms are solely for convenience and will not be considered in its interpretation.
17.5 Force Majeure: If the performance of these Terms or any obligation hereunder (except payment of moneys due) is prevented, restricted or interfered with by reason of fire or other casualty or accident; strikes or labor disputes; inability to procure raw materials, power or supplies; war or other violence; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental agency or intergovernmental body; or any other act or condition whatsoever beyond the reasonable control of the party charged with performance, such party, upon giving notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference for a period of up to 3 months.
17.6 Waiver: No waiver by any party of any of the provisions hereof is effective unless explicitly set out in writing and signed by the party so waiving. No waiver by any party will operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different nature, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17.8 Revisions to Terms: We may amend these Terms from time to time, in which case the updated Terms will supersede prior versions. If we make a change to these Terms, the updated Terms will be posted on our website. Please check the Terms posted on our website from time to time to take notice of any changes we made, as they will be binding on you. Your continued access and use of the Products following the effective date of any such updated Terms may be relied upon by us as your acceptance of any such amendment.
17.9 Governing Law: These Terms, your use of the Products, receipt of the Support Services and all disputes arising from or relating to these Terms, will be governed exclusively by the laws of the Province of British Columbia and the federal laws of Canada applicable in British Columbia without regard to conflict of laws principles. The parties irrevocably submit to the exclusive jurisdiction of the courts of the Province of British Columbia (Vancouver registry) for any actions or proceedings arising out of or relating to the enforcement of these Terms. However, you agree that nothing in these Terms precludes our application for injunctive remedies or other urgent legal relief in any jurisdiction.
17.10 Publicity; References: With your prior written consent, not to be unreasonably withheld: (a) we may list you as our customer in marketing and promotional materials, our web site and in press releases, and may use your logos in connection with those purposes, provided that such use at all times complies with your trademark/logo guidelines, and (b) you will reasonably cooperate in other our marketing efforts, including participation by you in a joint press release within 4 weeks following installation or first use of the Products.
17.11 Assignability: You will not assign these Terms without our prior written consent. Any attempt to assign these Terms not made in accordance with this clause will be void and without effect.
17.12 Successors and Assigns: These Terms will enure to the benefit of and be binding upon the parties and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns.