The Subscription Agreement (the “Agreement”) between Sales For Life Inc. (“Service Provider”) and Company comprises the Partnership Terms, and the following Subscription Terms.
1.1 “Company Data” means all electronic data or information submitted to the Product by Company.
1.2 “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Product.
1.4 “Partnership Terms” means the signed Partnership Terms referencing the Subscription Agreement.
1.5 “Product” means Service Provider’s ScalePipeline System.
1.6 “Third Party Applications” means online, Web-based applications or services and offline software products that are provided by third parties and interoperate with the Product.
1.7 “Training Content” means any and all content developed by Service Provider and provided to Company.
1.8 “User” or “Users” means individuals who are authorized by Company to use the Product, and who have been supplied user identifications and passwords by Company (or by Service Provider at Company’s request). Users may include Company’s and Company’s Affiliates’ employees, consultants, contractors and agents, but Company may not authorize unrelated third parties to be Users and must not provide such third parties with user identifications or passwords.
2.2 Service Provider shall authorize access to and assign unique passwords and user identifications. User identifications cannot be shared, transferred or used by more than one User. Company will be responsible for the confidentiality and use of User’s passwords and User identifications. Company will also be responsible for all electronic communications transmitted through the Product using Company’s account. Service Provider will act on any instructions it receives by Electronic Communications sent using Company’s passwords, User identifications, and/or account number.
2.3 Service Provider will provide Company with Training Content and other online resources to assist Company in its use of the Product. Service Provider operates a help desk (“Help Desk”) and will provide Company with telephone and email access to Help Desk personnel on the times and days established by Service Provider, which shall not be less than 9 am to 5 pm, Monday to Friday, Toronto time, Ontario provincial holidays excluded. Any contact with Service Provider concerning support issues initiated by Company using communication methods other than contact through the Help Desk may delay or limit the support available to Company and may be subject to additional charges in Service Provider’s discretion.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Company 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 Product or any software, documentation or data related to the Product (“Software”); modify, translate, or create derivative works based on the Product or any Software (except to the extent expressly permitted by Service Provider or authorized within the Product); use the Product or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
3.2 Company will not in any way express or imply that any comments or opinions contained in Company’s Electronic Communications to third parties are endorsed by Service Provider.
3.3 Company represents, covenants, and warrants that Company will use the Product only in compliance with all applicable laws and regulations. Company hereby agrees to indemnify and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Company’s use of the Product. Although Service Provider has no obligation to monitor Company’s use of the Product, Service Provider may do so and may prohibit any use of the Product it believes may be (or alleged to be) in violation of the foregoing.
3.4 Company shall not download, copy, reformulate or use the Training Content accessed through the Product otherwise than in accordance with this Agreement. The Training Content may only be accessed through the Product, and Company may not disseminate, share, transfer or sell the Training Content.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 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 Service Provider includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Company includes non-public data provided by Company to Service Provider to enable the provision of the Product (“Company Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in connection with the Product 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 (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2 Company owns all right, title and interest in and to the Company Data, as well as any data that is based on or derived from the Company Data and provided to Company through the Product. Company hereby grants Service Provider a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual licence to use or incorporate into the Product any suggestions, enhancement requests, recommendations or other feedback provided by Company, including Users, relating to the use of the Product, and Company shall provide and/or obtain from any employees, contractors, agents or Affiliates any and all such documentation necessary to grant such a licence.
4.3 All rights, title and interest in and to all intellectual property rights in the Product, Training Content and Software and any of its components are, as between Service Provider and Company, owned exclusively Service Provider or its licensors, and that the structure, organization and code of the Product and the materials comprising the Training Content are the valuable trade secrets of Service Provider and/or its licensors and suppliers. This Agreement and Company’s subscription to and use of the Product do not convey any rights in the Product, Software or Training Content, express or implied. Any rights not expressly granted in this Agreement are reserved by Service Provider.
4.4 Notwithstanding anything to the contrary, Service Provider shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Product and related systems and technologies (including, without limitation, information concerning Company Data and data derived therefrom), and Service Provider will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Product and for other development, diagnostic and corrective purposes in connection with the Product and other Service Provider offerings, and (ii) 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.
Service Provider trade-marks, service marks, logos and product and service names are marks of Service Provider (the “Service Provider Marks”). Company agrees not to display or use the Service Provider Marks in any manner without Service Provider’s express prior written permission. The trade-marks, logos and service marks of any third party application providers (“Marks”) are the property of such third parties. Company is not permitted to use these Marks without the prior written consent of the third party which owns the Mark
6. PAYMENT OF FEES
6.1 Company will pay Service Provider the then applicable fees described in the Partnership Terms monthly in accordance with the terms therein (the “Fees”).
7. TERM AND TERMINATION
7.2 Company may not terminate the Subscription Agreement during the first three months. Thereafter, the subscription is month-to-month. Either Party shall have the right to immediately terminate this Agreement for a material breach of the other party unless such breach is (i) capable of being and (ii) is, corrected within 20 business days of written notification of such breach by the non-breaching party. For the purposes hereof, “material breach” means a failure in any material respect to perform, keep or observe any of the terms, covenants or conditions herein required to be performed, kept or observed on the part of such party.
7.3 Upon any termination Service Provider will make all Company Data available to Company for electronic retrieval for a period of thirty (30) days, but thereafter Service Provider shall delete stored Company Data.
7.4 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.
8. WARRANTY AND DISCLAIMER
8.1 Service Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Product in a manner which minimizes errors and interruptions in the Company’s use of the Product. The Product may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Service Provider or by third-party providers, or because of other causes beyond Service Provider’s reasonable control, but Service Provider shall use reasonable efforts to provide advance notice by e-mail of any scheduled service disruption.
8.2 Service Provider does not warrant that USE OF the PRODUCT WILL be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the PRODUCT. THE PRODUCT IS PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, SERVICE PROVIDER 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 SERVICE PROVIDER’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE SUBSCRIPTION FEES PAID BY COMPANY TO SERVICE PROVIDER FOR THE PRODUCT UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. SERVICE PROVIDER INDEMNITY
10.1 Service Provider shall indemnify Company and its Affiliates (including their respective directors, officers, employees, agents and partners) in respect of any losses, damages, liabilities, costs, fees and expenses whatsoever, including reasonable legal fees and disbursements (“Losses”) incurred by them as a direct result of any third-party claim: (i) arising out of any property damage, personal injury, or death arising out of any act or omissions of Service Provider; or (ii) alleging that the Product provided by Service Provider hereunder infringe any intellectual property rights. Service Provider shall have no liability for any claim of infringement that is based on (iii) Company’s use of the Product in violation of this Agreement or applicable law, (iv) the use or combination of the Product with software, hardware, services, or any other product or intellectual property, not provided by Service Provider, or (v) use of the Product after Service Provider notifies Company to discontinue use because of an infringement claim.
10.2 If an infringement claim subject to the indemnification obligation in Section 10.1 above is brought or threatened, Service Provider shall, at its sole option and expense, use commercially reasonable efforts to: (a) procure a licence that will protect Company against such claim without cost to Company; (b) modify or replace all or portions of the Product as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Company a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Company under this Section 8.2 shall be Service Provider’s entire liability, and Company’s exclusive remedy, with respect to any infringement claim.
11. COMPANY INDEMNITY
Company shall indemnify Service Provider from and against any and all claims (i) alleging that the Company Data or any trade-marks or service marks other than Service Provider Marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to, a third party, or (ii) arising out of Company’s breach of clause 3.3 above (Company’s Lawful Conduct) or Section 4 above (Confidential Information) and shall hold Service Provider harmless from and against liability for any Losses to the extent based upon such claims. In the event that any malicious code enters the Product through Company-uploaded material or otherwise originates from Company, Company shall indemnify Service Provider for any resulting damage and shall, at its own expense, defend Service Provider from and against any and all claims by other clients of Service Provider or third parties alleging damage as a result of such malicious code.
The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Company otherwise agrees to reasonably cooperate with Service Provider to serve as a reference account upon request.
13.1 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.
13.2 This Agreement is not assignable, transferable or sublicensable by Company except with Service Provider’s prior written consent. Service Provider may transfer and assign any of its rights and obligations under this Agreement without consent.
13.3 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.
13.4 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 e-mail to the e-mail address set forth in the Partnership Terms; 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. This Agreement shall be governed by the laws of the Province of Ontario and the Federal laws of Canada applicable therein, without regard to conflict of laws provision.