BLACKPURL INC. SOFTWARE AS A SERVICE (SAAS) AGREEMENT (this “Agreement”)
The terms set out in this Agreement are intended to explain our obligations as a service provider and your obligations as a customer.Please read them carefully. The terms in this Agreement are binding on any use of the Services and apply to you from the time that BLACKPURL INC. (the “Supplier”) provides you with access to the Services.
By registering to use the Services, You acknowledge that You have read, understood and fully approve of all of the terms and conditions in this Agreement and have the authority to act on behalf of any person for whom You are using the Services.
The Supplier reserves the right to update, change or replace any of the terms or conditions in this Agreement by posting updates and/or changes to www.blackpurl.com.It is the Customer’s responsibility to check www.blackpurl.com periodically for changes. The Customer’s continued use of the Services following the posting of any changes constitutes acceptance of those changes. The Supplier offers the Services conditional upon the Customer’s acceptance of all terms and conditions set out in this Agreement. The Customer shall read this Agreement carefully before accessing or using these Services.If the Customer does not agree to all the terms and conditions of this Agreement, then the Customer must not access Services.
(A) The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet or on mobile applications on a pay-per-use basis for the purpose of managing vehicle retail and /or service businesses.
(B) You (“You” or, the “Customer”) wish to use the Supplier’s software applications and platforms in your business operations.
(C) The Supplier has agreed to provide, and the Customer has agreed to take and pay for, access to the Supplier’s software applications and platforms, including certain other services, subject to the terms and conditions of this Agreement.
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Authorized Users means those employees, agents and independent contractors of the Customer who are authorized by the Customer, in accordance with this Agreement, to use the Services and the Documentation, as further described in clause 2.
Business Day means any day which is not a Saturday, Sunday or a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done.
Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5.Supplier Confidential Information shall include any information disclosed by or on behalf of the Supplier to, or otherwise discovered by, the Customer that at the time of such disclosure or discovery should have been reasonably understood by the Customer to be confidential.
Customer Data means the data inputted by the Customer, Authorized Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Documentation means the documents made available to the Customer by the Supplier online via www.blackpurl.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date means the first date that the Supplier makes the Services available for access by the Customer.
Initial Subscription Term shall commence on the Effective Date and expire on the last day of the month in which the Effective Date occurred.Each Renewal Term shall be for a term of one calendar month.
Mobile App means the mobile application known as Blackpurl that is made available by the Supplier.
Normal Business Hours means 9am to 5pm, each Business Day.
Renewal Term means the period described in clause 14.1.
Services means the subscription services provided by the Supplier to the Customer under this Agreement via www.blackpurl.com, the Mobile App or any other website or mobile application notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
Software means the online software applications provided by the Supplier as part of the Services.
Subscription Fees means the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in www.blackpurl.com/pricing.
Subscription Term has the meaning given in clause 14.1.
Support Services Policy means the Supplier’s policy for providing support in relation to the Services as made available at www.blackpurl.com, the Mobile App or such other website address or mobile application as may be notified to the Customer from time to time.
User Subscriptions means the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorized Users to access and use the Services and the Documentation in accordance with this Agreement.
Virus means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.Words in the singular shall include the plural and vice versa.A reference to one gender shall include a reference to all other genders.A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
1.3 The Customer must only use the Services for the Customer’s own lawful internal business purposes, in accordance with this Agreement and any notice sent by the Supplier or conditions posted on www.blackpurl.com.
2. USER SUBSCRIPTIONS
2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 9.1, the restrictions set out in this clause 2 and all other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable, terminable right to permit the Authorized Users access to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
2.2 In relation to the Authorized Users, the Customer undertakes that:
(a) the maximum number of Authorized Users that it authorizes to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services and/or Documentation;
(c) each Authorized User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorized User shall keep his password confidential;
(d) it shall maintain a written, up to date list of current Authorized Users and provide such list to the Supplier within three (3) Business Days of the Supplier’s written request at any time or times;
(e) it shall permit the Supplier to audit the Customer’s use of the Services in order to establish the name and password of each Authorized User;
(f) if any of the audits referred to in clause 2.2(e) reveal that any password has been provided to any individual who is not an Authorized User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
(g) if any of audits, including those referred to in clause 2.2(e), reveal that the Customer has underpaid Subscription Fees to the Supplier, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in www.blackpurl.com/pricing, plus an additional amount equal to twenty-five percent (25%) of such underpayment, within ten (10) Business Days of the date of the relevant audit.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
(f) causes damage or injury to any person or property;
and the Supplier reserves the right, without any liability whatever to the Customer, to disable the Customer’s access to any material, including the Services, Software or the Documentation, in the event of a breach of this clause or any other clause of this Agreement.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means, except to the extent expressly permitted under this Agreement; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation;
(c) use the Services and/or Documentation to provide services to third parties;
(d) subject to clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorized Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.
2.5 The Customer shall use all reasonable efforts to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify the Supplier.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
2.7 If the Customer uses any communication tools available through www.blackpurl.com (such as any forum, chat room or message centre), the Customer agrees only to use such communication tools for lawful and legitimate purposes. The Customer must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person’s computing devices or software, content that may be offensive to any other users of the Services or www.blackpurl.com, or material in violation of any law (including material that is protected by copyright or trade secrets).
3. MAINTENANCE AND SUPPORT SERVICES
3.1 The Supplier will provide the Customer with the Supplier’s customer support services during Normal Business Hours.
4.1. The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
4.2. The Supplier shall use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable efforts to post a message on www.blackpurl.com regarding such unscheduled maintenance at least six (6) Normal Business Hours’ notice in advance.
4.3. The Customer acknowledges that:
(a) complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Supplier gives no warranty or representation that the Services will be wholly free from defects, errors and bugs;
(b) complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Supplier gives no warranty or representation that the Services will be entirely secure;
(c) the Services are designed to be compatible only with certain software and systems; and the Supplier gives no warranty or representation that the Services will be compatible with any other software or systems; and
(d) the Supplier gives no warranty or representation that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person if the Services are not used by the Customer in accordance with this Agreement or instructions given by the Supplier.
4.4. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement by the Supplier:
(a) a fault or failure of the internet or any public telecommunications network;
(b) a fault or failure of the Customer’s computer systems or networks;
(c) any breach by the Customer of this Agreement; or
(d) scheduled or unscheduled maintenance carried out in accordance with this Agreement.
5. CUSTOMER DATA
5.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data.The Supplier shall not maintain any back-up of any Customer Data.The Customer must maintain copies of all Customer Data.The Supplier expressly excludes liability for any loss of Customer Data no matter how caused.
5.4 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties agree that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the country where the Customer and the Authorized Users are located in order to carry out the Services and the Supplier’s other obligations under this Agreement;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
(d) each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
6. THIRD PARTY PROVIDERS
7. SUPPLIER’S OBLIGATIONS
7.1. The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorized contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use reasonable commercial efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3. The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
7.4. The Supplier gives no warranty about the Services. Without limiting the foregoing, the Supplier does not warrant that the Services will meet the Customer’s requirements or that they will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded insofar as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
8. CUSTOMER’S OBLIGATIONS
The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to render the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner and in good faith. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorized Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User’s breach of this Agreement;
(e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Software, at any time.
9. CHARGES AND PAYMENT
9.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 9 and as set out at www.blackpurl.com/pricing.
9.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to the Supplier, the Customer hereby authorizes the Supplier to bill such credit card:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 14.1, on the same day of each calendar month on which day the Effective Date fell, for the Subscription Fees payable in respect of the next Renewal Term;
(b) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 14.1, on the same day of each calendar month on which day the Effective Date fell, for the Subscription Fees payable in respect of the next Renewal Term,
and the Customer shall pay each invoice within ten (10) days after the date of such invoice.
9.3 If the Supplier has not received payment within five (5) after the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remains unpaid; and
(b) interest shall accrue on such due amounts at an annual rate equal to seven percent (7%), commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in either U.S., Canadian or Australian currency depending on the location from where the Customer is accessing the Services. For clarity, if the Services are being accessed from Canada, the fees shall be payable in Canadian currency; if the Services are being accessed from Australia, the fees shall be payable in Australian currency; if the Services are being accessed from any location other than Canada or Australia, the fees shall be payable in U.S. currency.
(b) are, subject to clause 13.4(c), non-cancellable and non-refundable;
(c) are exclusive of all taxes, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
9.5 Use of the Service may be subject to limitations, including but not limited to monthly transaction volumes and the number of calls You are permitted to make against the Supplier’s application programming interface.
9.6 The Supplier shall be entitled to increase the Subscription Fees, or any other fees payable pursuant to this Agreement, at the start of each Renewal Term upon thirty (30) days’ prior notice to the Customer by posting updates and/or changes to www.blackpurl.com.
10. PROPRIETARY RIGHTS AND ACKNOWLEDGEMENTS
10.1. The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Software, Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Software, Services or the Documentation.
10.2. The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
10.3. The Customer acknowledges that:
(a) The Customer is authorized to use the Services and www.blackpurl.com and to access the information and Customer Data that the Customer inputs into www.blackpurl.com;
(b) The Supplier has no responsibility to any person other than the Customer and nothing in this Agreement confers, or purports to confer, a benefit on any person other than the Customer. If the Customer uses the Services or accesses www.blackpurl.com on behalf of or for the benefit of anyone other than the Customer, the Customer agrees that:
(i) the Customer is responsible for ensuring that the Customer has the right to do so; and
(ii) the Customer will indemnify the Supplier against any claims or losses relating to the Supplier making Customer Data available to any person.
(c) The provision of, access to, and use of, the Services is on an “as is” basis and at the Customer’s own risk.
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 The Customer acknowledges that any information or details in respect of the Services, Documentation or the Software, all confidential information of the Supplier, and the results of any performance tests of the Services, are the Supplier’s Confidential Information.
11.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7 Notwithstanding anything in this Agreement, the Supplier shall be entitled to retrieve and compile Customer Data for purposes of summarizing and aggregating the data with similar data of other customers for use and disclosure for statistical purposes provided such Customer Data is not used or presented in a manner that identifies Customer as the source of the data or information.
11.8 This clause 11 shall survive termination of this Agreement, however arising.
12.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation.
12.2 The Supplier shall, subject to clause 12.5 and clause 13, defend the Customer against any claim that the Services or Documentation infringes any Australian patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim; and
(c) the Supplier is given sole authority to defend or settle such claim.
12.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on written notice to the Customer and refund any amount paid by the Customer to the Supplier in respect of the remaining balance of the current Subscription Term, without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall the Supplier, its employees, agents or sub-contractors be liable to the Customer to the extent that the alleged infringement is based on or related to:
(a) a modification of the Services or Documentation by anyone other than the Supplier; or
(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and, subject to clause 13, the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. LIMITATION OF LIABILITY
13.1 Notwithstanding anything contained in this Agreement, this clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a)any breach of this Agreement;
(b) any use made by the Customer of the Services, Software and Documentation or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
13.2 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services and the Documentation are provided to the Customer on an “as is” basis.
13.3 Nothing in this Agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation.
13.4 Subject to clause 13.2 and clause 13.3:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement;
(b) the Supplier shall not be liable to the Customer in respect of any:
(i) loss of profits or anticipated savings;
(ii) loss of revenue or income;
(iii) loss of use or production; or
(iv) loss of any business, contracts or opportunities; and
(c) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the six (6) months immediately preceding the date on which the claim arose.
13.5 This clause 13 shall survive termination of this Agreement, however arising.
14. TERM AND TERMINATION
14.1 This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 1 calendar month (each a “Renewal Term”), unless:
(a) either party notifies the other party of termination, in writing, at least thirty (30) before the end of the Initial Subscription Term or any Renewal Term, as the case may be, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Term; or
(b) otherwise terminated in accordance with the provisions of this Agreement;
and the Initial Subscription Term together with any subsequent Renewal Terms shall constitute theSubscription Term.
14.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:
(a) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
(c) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(d) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(e) the other party ceases, or threatens to cease, to trade.
14.3 On termination of this Agreement for any reason:
(a) all licences and rights granted under this Agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial efforts to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data.Notwithstanding any of the foregoing, the Customer must maintain copies of all Customer Data.The Supplier expressly excludes liability for any loss of Customer Data no matter how caused; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
15. FORCE MAJEURE
The Supplier shall have no liability to the Customer if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
16.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
16.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
17.1. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18. ENTIRE AGREEMENT AND SURVIVAL
18.1. This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
18.2. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
18.3. All provisions of this Agreement relating to confidentiality, ownership, indemnification, limitations of liability and any other subject that would, by its nature, be deemed to survive termination or expiry of this Agreement, will survive the termination or expiry of this Agreement.
19.1. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
19.2. The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
20. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21.1. Subject to anything else contained in this Agreement, any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this Agreement.
21.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
22. GOVERNING LAW AND JURISDICTION
22.1. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of the Province of Ontario
22.2. The parties irrevocably agree that the courts of the Province of Ontario have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).