Software as a Service User Agreement and Terms

Software as a Service User Agreement and Terms

THIS AGREEMENT, entered into per the term outlined in your Commercial Contract, between Energent Incorporated (the “Service Provider”), having offices at Suite 1114, 22 Frederick Street, Kitchener, Ontario, N2H 6M6 and you (the “Customer”).

FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged by the Customer and the Service Provider, the Customer and Service Provider agree as follows:

Article 1 - Software-as-a-Service ("SaaS") License

  1. 1.01. Software-as-a-Service
    Subject to the terms and conditions of this Agreement, Service Provider agrees to provide to Customer, on a Software-as-a-Service basis in exchange for the Fees described in your Commercial Contract, the Software-as-a-Service offering described in the Commercial Contract (the “Service”), maintained as per the Service Level Agreement (SLA) and as specified in this Agreement, delivering on the activation date hereof, and bug fixes or other minor enhancements or improvements to the Service.

  2. 1.02. License Grant Service Provider hereby grants to the Customer, subject to all of the terms and conditions of this Agreement, a non-exclusive, non-transferable licence to access and use to the Service via the internet, in object code form only, solely for business purposes in accordance with the terms set out in this Agreement.

  3. 1.03. License Restrictions
    Customer shall not, directly or indirectly:
    1. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Service;
    2. modify, translate, or create derivative works based on the Service;
    3. rent, lease, distribute, sell, resell, assign, or otherwise trasfer rights to the Service;
    4. use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party;
    5. remove any proprietary notices from the Service;
    6. publish or disclose to third parties any evaluation of the Service without Service Provider's prior written consent; or
    7. create any link to the Service or frame or mirror any content contained on, or accessible from, the Service.

  4. 1.04. No Sale and Purchase or Lease
    For greater certainty and notwithstanding anything to the contrary contained in this Agreement, the parties agree that this transaction is not a sale and purchase nor a lease of the Service but is a licence to use the Service.

Article 2 - Fees

  1. 2.01. Fees
    In consideration of the licence and other rights granted herein the Customer shall pay to the Service Provider the fees as described in your Commercial Contract.

  2. 2.02. Additional Fees
    Additional upgrades (i.e., modifications, additions or substitutions that result in a substantial change, improvement or addition to the Service), that are not specifically described and included in the Commercial Contract, may be offered by Service Provider for an addition fee (the “Additional Fees”) and will be added to and included in a revised Commercial Contract. For clarity, Service Provider has no obligation to make develop or otherwise make available additional features, upgrades, modifications or enhancements to the Service unless previously committed.

  3. 2.01. Payment of Fees
    Customer shall pay all Fees and any other charges, in accordance with billing terms in the Commercial Contract in effect at the time a fee or charge is due and payable.

Article 3 - Confidentiality and Ownership of Intellectual Property

  1. 3.01. Ownership of Intellectual Property
    Customers acknowledges that:
    1. Service Provider owns the full right, title and interest in and to the Service and all modifications, improvements, enhancements, or additions thereto, including all associated patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights;
    2. all right, title and interest in and to the Services and all modifications, improvements, enhancements, or additions thereto, including without limitation all associated patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights, are, and shall at all times remain, the exclusive property of the Service Provider; and
    3. Customer shall have no right or interest in the Service or any modifications, improvements, enhancements, or additions thereto except for the limited licence to use the Service as expressly set forth in this Agreement.

  2. 3.02. Customer Data
    1. As between Service Provider and Customer, Customer shall own all data, information or material that Customer enters into the Service or has entered on its behalf (the “Customer Data”). Except as permitted in this Agreement, Service Provider will not edit, delete or disclose the contents of Customer Data unless authorized by the Customer or unless Service Provider is required to do so by law or in the good faith belief that such action is necessary to:
      1. conform to applicable laws or comply with legal process served on Service Provider;
      2. protect and defend the rights or property of Service Provider; or
      3. enforce this Agreement.
    2. Service Provider may provide user statistical information such as usage or traffic patterns in aggregate form to third parties, but such information will not include personally identifying information. Service Provider may access Customer Data to respond to service or technical problems with the Service. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data and Service Provider assumes no responsibility for the deletion, correction, destruction, loss, infringement or failure of the Services to store any Customer Data.
    3. Customer shall be responsible for compliance with all obligations imposed by applicable privacy laws, and Customer shall indemnify, defend and hold Service Provider harmless from and against any third party claims against Service Provider resulting from the use and disclosure by Service Provider of personal information consistent with the terms of this Agreement.
    4. Service Provider shall retain Customer Data for a period of ninety (90) days after expiration or termination of this Agreement. Customer may request that Service Provider conduct a mass export of Customer Data, and Service Provider agrees to provide such services at its then current rates on a time and materials basis. Thirty (30) days after expiration or termination of this Agreement, Service Provider may delete and destroy all Customer Data without notice or further liability to Customer.

    Please refer to Service Provider’s Privacy Policy for further details

  3. 3.03. Confidentiality
    1. Parties' Obligations
      Each of the Parties agrees to maintain in confidence any non-public information of the other Party, whether written or otherwise, disclosed by the other Party in the course of performance of this Agreement (“Confidential Information”). The parties hereby agree that Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto. The receiving Party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each Party agrees to restrict access to the Confidential Information of the other Party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither Party shall make Confidential Information available to any other person or entity without the prior written consent of the other Party.
    2. Exlusions
      Confidential Information shall not include any information that is:
      1. already known to the receiving Party at the time of the disclosure;
      2. publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving Party;
      3. subsequently disclosed to the receiving Party on a non-confidential basis by a third party not having a confidential relationship with the other Party hereto that rightfully acquired such information;
      4. communicated to a third party by the receiving Party with the express written consent of the other Party hereto; or
      5. legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process, provided the receiving Party provides prompt notice of any such subpoena, order, or the like to the other party so that such Party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
    3. Destruction or Return of Confidential Information
      Upon expiration or Termination of this Agreement for any reason, each Party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other Party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving Party in any form or for any reason.

Article 4 - Customer Obligations

  1. 4.01. Hardware
    Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third party access charges (e.g., ISP, telecommunications) incurred while using the administration and related functionality of the Service where applicable and specified in the Commercial Contract.

  2. 4.02. Customer Conduct
    Customer shall be solely responsible for its actions and the actions of its users while using the Service and the contents of its transmissions through the Software-as-a Service. Customer agrees:
    1. to abide by all local and international laws and regulations applicable to Customer's use of the Service;
    2. not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service or another's computer;
    3. not to use the Service for illegal purposes;
    4. not to interfere or disrupt networks connected to the Service;
    5. not to post, promote or transmit through the Service any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature;
    6. not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; and,
    7. to comply with all regulations, policies and procedures of networks connected to the Service. Customer acknowledges and agrees that Service Provider neither endorses the contents of any customer communications nor assumes any responsibility for any threatening, libellous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. Service Provider may remove any violating content posted on the Service or transmitted through the Service, without notice to Customer.

  3. 4.03. Age Restrictions
    To register and participate in Energent Programs, users must be over the age of 13 or have consent by a parent or guardian who meets the age requirement.

Article 5 - Maintenance and Support

  1. 5.01. Maintenance Support Services
    During the term of this Agreement Service Provider shall provide the Customer with support for the Service in use by Customer which shall comprise of the following:
    1. Email Support
      E-Mail Support shall comprise e-mail access and response.
    2. Direct Support
      Direct Support shall comprise the following services:
      1. advice by telephone or e-mail (at the telephone number or e-mail address stipulated by Service Provider);
      2. the creation and upload to the Service, from time to time at Service Provider’s sole discretion, patches and fixes in respect of the Service; and
      3. the diagnosis of errors in the Service and the rectification of such errors by the issue of fixes or patches in respect of the Service;
      4. any other support service offered to Customer by Service Provider from time to time which Service Provider may, at its sole discretion, designate as a Support Service.
    3. Exclusions
      Support Services shall not include the diagnosis and rectification of any errors resulting from:
      1. any modifications of the Service made by any person other than Service Provider;
      2. minor defects in the Service which do not significantly affect or impair the use of the Service;
      3. any incorrect or improper use of the Service;
      4. hardware, software or other equipment not supplied by the Service Provider;
      5. the failure by Customer to implement recommendations in respect of any solutions to errors previously advised by Service Provider; and,
      6. the use of the Service for any purpose for which it was not designed.

  2. 5.02. Rectification of Errors
    Service Provider shall, upon request by Customer, provide diagnosis and rectification of errors notwithstanding that the error in question results from any of the circumstances described in Section 5.01(c). Service Provider shall charge for this rectification of errors of the Service on a time and materials basis.

  3. 5.03. Customer Obligations
    During the continuance of this Agreement, Customer shall:
    1. provide Service Provider (so far as Customer is able) with a documented example of any error in respect of which a request for diagnosis and rectification has been made under this Agreement;
    2. co-operate fully with Service Provider’s personnel in the diagnosis of any error in the Service or the Documentation and perform such tests of the Service as Service Provider shall request in the evaluation of any request for support services by Customer;
    3. ensure that the administration functionality of the Service is used in a proper manner by competent trained employees only or by persons under their supervision; and,
    4. save as otherwise expressly provided in this Agreement, not make any translation, adaptation, arrangement or any other alteration of the Service or make any reproduction, distribution, communication, display or performance to the public of the results of such acts.
    5. Customer shall notify Service Provider within X (x) days of the activation of the Service, of the identity of up to Y (y) individuals who shall act as the sole contact points and channels of communication for the provision by Service Provider of the Support Services during the term of this Agreement. Customer shall inform Service Provider of any change in the identity of such persons.

  4. 5.04. Errors
    For greater certainty, notwithstanding anything herein to the contrary, the Service Provider does not represent or warrant that the Service will be error free or without bugs or defects. The Service Provider’s sole obligation with respect to any such errors, bugs or defects shall be to provide the support services set forth in this Agreement and to make reasonable efforts to correct or provide a work around for such errors, bugs or defects in a timely manner based on the critical degree of such error, bug or defect.

Article 6 - Passwords and Security

  1. 6.01. Passwords
    Service Provider shall issue to Customer, or shall authorize a Customer administrator to issue, a password for each user authorized to use Customer's account for whom Customer has paid the applicable fee. Customer and its users are responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user.

  2. 6.02. Security
    Service Provider will maintain commercially reasonable security precautions to prevent unauthorized access to the Service. Customer acknowledges that, notwithstanding such security precautions, use of or connection to the internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Service and Customer Data. Accordingly, Service Provider cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over the Internet.

Article 7 - Term and Termination

  1. 7.01. Term
    The Term of the engagement is defined as having a start date and an end date as specified in the Commercial Contract. By mutual agreement, it is agreed that the term of the agreement may be extended, subject to any technical and/or commercial considerations that may then be applicable.

  2. 7.02. Termination
    This Agreement may be terminated prior to the expiry of the Term as follows:
    1. immediately by either party if the other party is in breach or default of any of its obligations under this Agreement and such breach or default continues unrectified for thirty (30) days following the provision of written notice of such breach or default, or where such breach cannot be reasonably cured within such thirty (30) day period, such party has failed to commence remedying such breach and thereafter diligently pursue same;
    2. immediately by either party if the other party voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against the other party under a bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition is not discharged with sixty (60) days after its filing, or a receiver, trustee or similar person is appointed with respect to the other party’s assets;
    3. the other party ceases to carry on its business;
    4. by the Service Provider if the Service Provider does not receive any payments due hereunder when due and such non-payment continues for fifteen (15) business days.

  3. 7.03. Effect of Expiration or Termination
    Upon the expiration of the Term of this Agreement, this Agreement will expire and Service Provider will terminate Customer's ability to use the Service. Any Termination of this Agreement pursuant to this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such Termination. Upon Termination of this Agreement for whatever reason, Customer will immediately deliver up any materials and any confidential and proprietary information which it has no contractual right to retain.

Article 8 - Warranties, Disclaimers and Indemnification

  1. 8.01. Warranty of Service Provider
    Service Provider warrants that the Service will perform substantially and materially in accordance with the functional specifications set forth in the Service Level Agreement included with the commercial contract.

  2. 8.02. Disclaimer of Warranties
    Except as set forth above, Customer expressly agrees that use of the Service is at the Customer’s sole risk. The Service is provided on an “As Is”, “As Available” basis. Except as explicitly set forth herein the Service Provider expressly disclaims all warranties of any kind, whether express or implied to the greatest extent permissible by applicable law, including without limiting the foregoing, any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, as well as warranties arising by usage of trade, course of dealing or course of performance. Service Provider makes no warranty that the Service will meet Customer’s requirements that the services will be uninterrupted, timely, secure or error-free, or that defects in the services will be corrected. Service Provider makes no warranty as to the results that may be obtained from use of the Service or as to the accuracy or reliability of any content or information obtained or made by the Service. Customer understands and agrees that any material or data downloaded or otherwise obtained through the Service is done at Customer’s own discretion and risk and that the Customer will be solely responsible for any damage to Customer’s computer systems or loss of data or income that results from the download of such material or data or use of the Service.

  3. 8.03. Indeminification by Service Provider
    1. Service Provider, at its own expense, will defend any claim brought by a third party against Customer to the extent that the claim is based on a claim that the Software-as-Service, as used within the scope of this Agreement, directly infringes any Canadian or United States copyright or misappropriates any trade secret recognized as such under the laws of Canada and Service Provider will pay those costs and damages finally awarded against Customer for any such claim that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. Service Provider's indemnification obligations with respect to a claim are conditional upon:
      1. Customer notifying Service Provider promptly in writing of such claim;
      2. Customer giving Service Provider sole control of the defence of all such claims and any related settlement negotiations; and
      3. Customer co-operating with Service Provider in such defence (including, without limitation, by making available to Service Provider all documents and information in Customer's possession or control that are relevant to the infringement or misappropriation claims, and by making Customer's personnel available to testify or consult with Service Provider or its legal advisers in connection with such defence).
      If Customer settles any such claim without Service Provider's prior written approval, Service Provider shall be relieved of all liability with respect to such claim.
    2. Exclusions
      Notwithstanding the foregoing, Service Provider shall have no liability or obligation with respect to any infringement or misappropriation claim based upon:
      1. any use of the Service not in accordance with this Agreement or for purposes not intended by Service Provider; or
      2. any modification of the Service made by any person other than Service Provider where such modification is not authorized by Service Provider.
    3. Remedies
      If the Service becomes, or in Service Provider's opinion is likely to become, the subject of an infringement or misappropriation claim, Service Provider may, at its sole option and expense, either:
      1. procure for Customer the right to continue to use the Service pursuant to this Agreement; or
      2. replace or modify the Service to make them non-infringing; or
      3. terminate this Agreement and Customer's right to use the Service and refund to Customer any unused pre-paid Fees as of the date of Termination.

  4. 8.04. Indemnification by Customer
    Customer agrees to defend, indemnify and hold Service Provider, its parent, subsidiaries, officers, directors, employees, successors and assigns harmless from any claim, demand, damages, costs and expenses (including reasonable legal fees), arising from any third party claim against Service Provider due to or arising out of:
    1. any use of the Service by Customer, its affiliates, employees agents, successors and assigns other than in accordance with this Agreement;
    2. any breach of this Agreement by Customer, its affiliates, employees agents, successors and assigns; and
    3. any unauthorized modification of the Service by Customer, its affiliates, employees, agents, successors and assigns, including any claims for intellectual property infringement arising therefrom.

  5. 8.05. Limitation of Liability
    The liability of Service Provider, whether arising under this Agreement, contract, tort, negligence, statutory liability or other legal theory, shall be limited to the direct and actual money damages effectively incurred by Customer, and in any event such liability shall not in the aggregate exceed the greater of the total fees paid to the Service Provider by the Customer for services rendered under this Agreement during the most recent three (3) month period, regardless of the number of claims. In no event shall the Service Provider be liable for special, punitive, indirect or consequential damages, including but not limited to any claim for loss of profit, use, data or other property, even if Consultant has been notified of the possibility of such damages, and Company hereby waives any claim or recourse against Consultant for such damages.

Article 9 - General

  1. 9.01. Publicity
    Service Provider may use Customer’s name as part of a general list of customers and may refer to Customer as a user of the Service in its general advertising and marketing materials.

  2. 9.02. Notices
    All notices to a Party shall be in writing and sent to the addresses specified in this Agreement and shall 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.

  3. 9.03. Entire Agreement
    This Agreement contains the entire agreement of the parties and supersedes any and all previous agreements with respect to the subject matter hereof, whether orally or in writing. This Agreement supersedes any terms printed on Customer's purchase order or other forms.

  4. 9.04. Assignment
    This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Customer may not assign this Agreement. Service Provider may assign this Agreement to any parent, subsidiary or affiliate or to any successor to its business, and Service Provider may subcontract any or all of its obligations hereunder.

  5. 9.05 Governing Law
    This Agreement and any disputes hereunder shall be governed in all respects, including validity, interpretation and effect, by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard of its conflict of laws principles. Any dispute under this Agreement shall be brought exclusively in the courts situate in the Province of Ontario, and Customer hereby submits to the exclusive jurisdiction of such courts. Customer agrees that any cause of action arising out of or related to this Agreement shall be brought within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

  6. 9.06. Counterparts and Electronic Transmission
    This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and both of which together shall constitute one agreement. The delivery of copies of this Agreement and/or of signature pages by facsimile transmission or pdf e-mail shall constitute effective execution of this Agreement by the signatories. Signatures of the signatories transmitted by facsimile or pdf e-mail shall be deemed to be their original signatures for all purposes.

  7. 9.07. Headings
    The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

  8. 9.08. Interpretaion
    The parties agree that there shall be no presumption nor rule of construction applied that this Agreement is to be construed more strictly against the party who itself or through its agent prepared the same.

  9. 9.09. No Waiver
    No waiver of any default, condition or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise.

  10. 9.10. Sustainability
    In the event that any one or more of the provisions of this Agreement are invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.

  11. 9.11. Force Majeure
    Neither party shall be in default if its failure to perform any obligation under this Agreement is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, war, strikes, labour disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements.