Subscription Agreement & Order form
THIS Subscription Agreement (the “Agreement”) is between nGUVU Technologies Inc. (“nGUVU”) and you, as nGUVU’s customer (“Customer”). This Agreement sets forth the terms and conditions that govern orders placed under this Agreement. By clicking the acceptance box upon signing up for an account or upon placing an order, or by using nGUVU’s services, Customer agrees to be bound by this Agreement.
This Agreement is effective as of the date on which the Order Form is approved by Customer (the “Effective Date”).
|Name: Pierre Donaldson||Title: Chairman & CEO||Email: firstname.lastname@example.org|
|Name: Pascal Leclerc||Title: VP of Product Strategy||Email: email@example.com|
|Effective Date||Day, Month, 2017 (the “Effective Date”)|
The pricing listed in this ORDER FORM supersedes any quotation issued by NGUVU pertaining to the products and services set forth below.
The set-up fees are $3000 and include 5 KPIs and associated data.
All additional KPIs and associated data will be charged at $500 each.
$20.00 per Billable User per month
The number of BILLABLE USERS will be adjusted every 30 days.
Payment upon reception of the invoice.
If additional services are required, the hourly rate is $150.
Set-up activities includes
1. DATA: Define reporting format and data transfer process;
2. INTEGRATION: Integrate and validate KPIs in TEST environment;
3. CONFIGURATION: Set-up KPI parameters and objectives;
4. PRE-DEPLOYMENT: Training and change management;
5. GO-LIVE: Support go-live activities;
6. TRACKING: Weekly progress reports and feedback (12 weeks).
For the purposes of this Agreement:
1.1 “Activation Date” means the date on which the Parties have agreed and identified as the activation date for the Services in the relevant Order Form;
1.2 “Affiliate” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity. For the purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity;
1.3 “Billable User" means an employee of Customer or its Affiliates for whom data is used to generate a result in the Services;
1.4 “Business hours” are from 9:00 a.m. to 5:00 p.m. EST, Monday to Friday inclusively, excluding Quebec (Canada) statutory holidays;
1.5 “Change Request" refers to a formal proposal to undertake a change that is not included in the initial scope of the Service;
1.6 “Confidential Information” means (i) any and all non-public, confidential or proprietary information of a Party, including any information relating to the existence or content of this Agreement, the Services, the Documentation, Customer Data, and a Party’s business, products, services, activities, operations, business affairs, customers and prospects, Intellectual Property (including nGUVU IP), technology, know-how, design rights and trade secrets, whether such information is provided orally, in writing, in computer readable form or otherwise and whether or not it is specifically identified as confidential, and (ii) any copies, extracts or reproduction, in whole or in part, of any of the foregoing;
1.7 “Customer Applications” means all software programs that Customer or Users provide and load onto or create using the Services (e.g., a Customer mobile application). For greater certainty, the Services and nGUVU IP do not fall within the meaning of the term “Customer Applications”;
1.8 “Customer Data” means all electronic data or information submitted by Customer through the Services whether in printed, electronic, magnetic, optical or other material or tangible form. For greater certainty, anonymized or aggregated data created or generated by the Services of nGUVU shall not be considered Customer Data;
1.9 “Customer Responsibilities” has the meaning set forth in Section 4.1.
1.10 “Documentation” means any and all documentation, user manual or other information, available in writing, online or otherwise, relating to the Services;
1.11 “Expenses” has the meaning set forth in Section 7.2.
1.12 “Fees” means the fees paid by a Customer (and actually received by nGUVU) for the subscription of Services in accordance with an Order Form;
1.13 "Force Majeure" means any unavailability caused by circumstances beyond nGUVU's reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving nGUVU employees), and Internet service provider failures or delays, or denial of service attacks;
1.14 “Intellectual Property” means any and all ideas, concepts, inventions, methods, processes, know-how, works, software, computer programs and other computer software (including all source and object codes, algorithms, architectures, structures, user interfaces including display screens, lay-out and development tools), database, design, plans, drawings, brochures, website content, sales and advertising literature and other marketing materials, and any improvements thereon or applications or derivative works thereof, and all other forms of intellectual property, all whether or not registered or capable of such registration;
1.15 “Intellectual Property Rights” means any and all patents, copyrights, trademarks, trade names and other proprietary rights, and all registrations or applications in relation to the foregoing;
1.16 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
1.17 “nGUVU Background IP” means all Intellectual Property that is developed by or first conceived or reduced to practice by nGUVU, its Affiliates, its licensors or by any third party on nGUVU’s behalf (including subcontractors) either prior to, or independent of, the Services provided by nGUVU to Customer pursuant to this Agreement;
1.18 “nGUVU Foreground IP” means all Intellectual Property developed by or first conceived or reduced to practice by nGUVU, its Affiliates, its licensors or by any third party on nGUVU’s behalf (including subcontractors) in the performance of Services provided by nGUVU to Customer pursuant to this Agreement;
1.19 “nGUVU IP” means, collectively, the nGUVU Background IP and the nGUVU Foreground IP;
1.20 “Open Source License Terms” means license terms of certain computer code (open source elements) which require such code to (i) be disclosed in source code form to third parties, (ii) be licensed to third parties for the purpose of making derivative works, or (iii) be redistributable to third parties at no charge;
1.21 “Order Form” means an order form placed by Customer for Services;
1.22 “Party” means either nGUVU or Customer, as applicable, and “Parties” means nGUVU and Customer;
1.23 “Patches” means all updates, upgrades, patches, bug fixes, corrections, service packs and releases to the Services;
1.24 “Services” means the nGUVU’s cloud software, which is deployed and hosted by nGUVU and/or its suppliers and made available by nGUVU to Customer and its Affiliates via the Internet. For greater certainty, “Services” exclude Customer Applications;
1.25 “Service Level” has the meaning set forth in Section 3.3;
1.26 “Third Party Material” means any Intellectual Property and all or part of the Intellectual Property Rights related thereto, which are wholly or partially owned or controlled by a third party;
1.27 “Trademarks” means trade-marks, trade-names, brands, trade dress, business names, domain names, designs, graphics, logos and other commercial symbols and indicia of origin whether registered or not and any goodwill associated therewith; and
1.28 “User” means an employee of Customer or its Affiliates or an independent contractor, consultant or agent of Customer of its Affiliates: (i) who is authorized by Customer to access and use the Services; (ii) for whom subscriptions to the Services have been ordered; and (iii) who has been supplied user identifications and passwords by Customer (or by nGUVU at Customer's request).
In this Agreement:
2.1 Headings. Headings of articles and sections are inserted for convenience of reference only and do not affect the construction or interpretation of this Agreement;
2.2 Including. Where the word “including” or the word “includes” is used in this Agreement, it means “including (or includes) without limitation”;
2.3 Currency. Except as otherwise expressly set out in an Order Form, all amounts referred to in this Agreement and Order Forms, including the symbol “$”, are stated in US dollars;
2.4 Order of Precedence. In the event of any inconsistencies between the provisions set forth in this Agreement and in any Order Form, the provisions of the Order Form shall prevail.
2.5 Standard Forms. Customer acknowledges and agrees that nothing in Customer purchase orders or any documents submitted or provided by Customer in connection with any Order Forms submitted herein shall be construed to modify, amend or supplement the terms of this Agreement or any Order Forms; and
2.6 Language. The Parties expressly agree that this Agreement and all documents related thereto be only available in English. Les parties aux présentes consentent expressément à ce que le présent contrat, ainsi que tous les documents y afférents, soient uniquement disponibles en langue anglaise.
3.1 Provision of the Services. Subject to (i) the terms and conditions of this Agreement, (ii) the applicable Order Form(s) and (iii) payment in full of the applicable Fees, nGUVU shall make the Services available to Customer, its Affiliates and the Users in accordance with the applicable Order Form(s). Customer agrees that subscription for Services hereunder are neither contingent on the delivery of any future functionality or features of the Services nor dependent on any oral or written public comments made by nGUVU regarding future functionality or features of the Services.
3.2 Service Changes. Customer acknowledges and agrees that nGUVU may, from time to time and at its sole discretion, make changes or updates to the Services (such as infrastructure, security, technical, configurations, application features, etc.), including to reflect changes in technology, industry practices and patterns of system use. Customer is required to accept all Patches necessary for the proper function and security of the Services, as such Patches are generally released or made available by nGUVU. Except for emergency or security related maintenance activities, nGUVU will use commercially reasonable efforts to coordinate with Customer the scheduling of application of Patches, based on nGUVU’s next available standard maintenance window.
3.3 Service Levels. nGUVU shall use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week subject to the terms of the Service Levels set out below and to any downtime or service suspension as set out in Sections 3.5 and 7.1 of this Agreement. All support requests that are not directly related to (i) the inability to access or use the Services or (ii) to error corrections of the Services will be supplied by nGUVU in accordance with the terms of a separate Order Form only upon request and at nGUVU’s regular rates.
(a) Service Availability. Table A below defines the performance measure for service availability within which nGUVU will endeavor to maintain the Services ("Service Level"). The Service Levels will apply after the end of the first calendar month following the Activation Date.
Table A – Service Availability
|Service Level||Measure||Coverage||Service Level Target|
|Service Availability||Time during which the Services are available for use.||24 hours a day, 7 days a week, 365 days a year, including statutory holiday, less Excusable Down-time*||99.8% averaged over a calendar month|
* “Excusable Down-time” includes any event that: (1) is caused by components which are not nGUVU's responsibility; (2) is caused by Customer or its Affiliates (including their respective representatives or agents), Users, or the equipment or software of any of the foregoing; (3) is a planned downtime, i.e., an interruption of the Services as announced by nGUVU (nGUVU shall use commercial reasonable efforts to notify Customer at least 24 hours in advance); or (4) constitutes a Force Majeure event.
(b) Service Repair Time. Table B below defines the service repair time within which nGUVU shall endeavor to repair the Services.
Table B Service Repair Time
|Service Repair Time||The duration required to repair the Service from the time a service outage is detected or reported.||Less than 12 hours.|
3.4 Monitoring and Notification. nGUVU monitors its Services. If Customer experiences any issue with regards to the performance of the Services, Customer may send a request to nGUVU by email at firstname.lastname@example.org. Customer shall report to nGUVU any denial of service attack and any detected or suspected hacker activity.
3.5 Service Suspension. nGUVU may decide to suspend Customer’s account, access to or use of the Services, the length of which depends on the urgency of the matter if:
(a) Customer, its Affiliates or a User breaches any provision of the Agreement, which breach is not cured within 15 days of Customer receiving written notice thereof from nGUVU. nGUVU will restore Customer’s account or use of the Services after nGUVU determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; or
(b) nGUVU detects fraud, a security breach or any other similar threat that causes or that could cause, in nGUVU’s reasonable opinion, damage to the Services, to Customer’s account, Customer Data and/or Customer Applications. nGUVU will use commercially reasonable efforts to restore the affected Services as soon as possible after the suspension of the Services.
Any suspension by nGUVU of the Services under this Section 3.5 shall not excuse Customer from its payment obligations under the Agreement.
For greater certainty, it is at nGUVU’s sole discretion to decide whether, in case of an uncured breach from Customer, its Affiliates or a User, to terminate this Agreement, pursuant to Section 8.2 or to suspend Customer’s account, pursuant to this Section 3.5.
3.6 Personnel. nGUVU will use its reasonable endeavors to minimize changes of nGUVU employees, subcontractors or agents who are engaged or involved in providing the Services.
3.7 Policies. In performing the Services, nGUVU and its employees shall comply with all applicable Customer policies as the same may be communicated to nGUVU in writing from time to time in writing.
3.8 Protection of Customer Data.
(a) nGUVU shall take commercially reasonable steps to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. nGUVU shall not (i) intentionally modify Customer Data; (ii) disclose Customer Data except as compelled by law in accordance with Section 13 or as expressly permitted in writing by Customer; or (iii) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with Customer support matters.
(b) If Customer Applications include third party programs, Customer acknowledges and agrees that nGUVU may allow providers of those third party programs to access the Customer Data and Customer Applications, as required for the interoperation of such third party programs with the Services, with the prior written consent of Customer. nGUVU will not be responsible for any use, disclosure, modification or deletion of Customer Data or Customer Applications resulting from any such access by third party program providers or for the interoperability of such third party programs with the Services.
(c) Customer acknowledges and agrees that nGUVU and its Affiliates may perform certain aspects of the Services (including support services), as well as other services (including disaster recovery) from locations other than Customer’s place(s) of business.
4. CUSTOMER OBLIGATIONS
4.1 Assistance and Information. Customer shall provide nGUVU with all necessary information and assistance that is necessary for the performance of nGUVU’s obligations hereunder or otherwise that is reasonably requested by nGUVU. In particular, Customer shall: (i) perform those tasks and assume those responsibilities and requirements specified in this Agreement and in the applicable Order Form (collectively, the “Customer Responsibilities”); (ii) provide nGUVU with all necessary Customer Data and other information referred to in the applicable Order Form or that is otherwise necessary for the performance of nGUVU’s obligations hereunder or otherwise that is reasonably requested by nGUVU; (iii) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data and the use of Customer Data; (iv) ensure prompt and efficient co-operation of all its personnel who must assist nGUVU for the performance of the Services; (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify nGUVU promptly of any such unauthorized access or use and (vi) should certain resources of nGUVU be required to go to Customer's place of business to execute Services, provide appropriate facilities such that nGUVU shall not be unreasonably hindered from efficiently performing its obligations hereunder; and (vii) use the Services only in accordance with this Agreement and the Documentation and applicable laws and government regulations.
4.2 Passwords. Customer is solely responsible (i) for maintaining the confidentiality of the Users’ user identifications and passwords that were provided by Customer (or by nGUVU at Customer’s request) in connection with the use of the Services and (ii) for restricting/protecting access to Customer equipment (hardware and software) required to access and use the Services.
4.3 Users. Customer is responsible for Users’ compliance with this Agreement and for all use and misuse of the Services by the Users and by Affiliates of Customer or their breach of the terms of this Agreement. Customer shall indemnify nGUVU for any damages, costs and expenses suffered as a result of such use, misuse or breach.
4.4 Viruses and Security. It is Customer’s responsibility to have and maintain in place Malicious Code protection software and security for all of its systems and data, including at a minimum firewalls, passwords, physical security, and access control policies. If Customer’s systems have persistent connections to the Internet, or transmit credit card or gift card transactions over the Internet, or use nGUVU or third party SSL to transmit credit card or gift card transactions, or otherwise have persistent connections to any network where there is potential for unauthorized access, Customer acknowledges that the security and protection of the network and the data and applications on that network, including protections against unauthorized access, is solely and entirely Customer’s responsibility. A properly configured firewall is required for each site using a persistent connection to the public Internet or any private network where there is a potential for unauthorized access to the Services. Customer acknowledges that, to be effective, Malicious Code protection software requires periodic and routine updates, which Customer must obtain from its supplier or the manufacturer, as appropriate. nGUVU DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE SERVICES OR CUSTOMER’S DATA WILL REMAIN VIRUS-FREE. SUPPORT OR OTHER SERVICES HEREUNDER NECESSITATED BY COMPUTER VIRUSES, OR BY ANY FAILURE OR BREACH OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA, INCLUDING DAMAGE CAUSED BY PERSONS LACKING AUTHORIZED ACCESS, ARE NOT COVERED UNDER THIS AGREEMENT, AND WILL BE SUPPLIED ONLY UPON CUSTOMER REQUEST AND ON A REASONABLE EFFORTS BASIS, ON A TIME-AND-MATERIALS BASIS AT STANDARD nGUVU RATES. CUSTOMER WAIVES ANY CLAIMS HEREUNDER AGAINST nGUVU TO THE EXTENT SUCH CLAIMS ARISE (I) FROM CUSTOMER’S FAILURE TO HAVE OR MAINTAIN CURRENT VIRUS PROTECTION, (II) AS A RESULT OF A FAILURE OR BREACH OF CUSTOMER’S SECURITY FOR ITS SYSTEMS, CUSTOMER DATA OR CUSTOMER APPLICATIONS, OR (III) AS A RESULT OF ANY UNAUTHORIZED ACCESS TO CUSTOMER’S SYSTEMS (EXCEPT IF SUCH ACCESS IS MADE BY nGUVU’S EMPLOYEES OR AGENTS).
(a) Customer will not allow the Services to be accessed or used by anyone other than the Users and those of its Affiliates.
(b) Except as provided herein, Customer may not: (i) loan, rent, lease, transfer, convey, assign, sell, distribute or license the Services (or any part thereof); (ii) modify, combine and/or distribute the Services (or any part thereof) with any other software or code in a manner which would subject the Services to Open Source License Terms; (iii) sell information services to other parties through the use of the Services, whether in the form of a service bureau, reservation center, or other information processing entity; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material (including but not limited to Customer Data and Customer Applications) in violation of third-party privacy rights; (v) use the Services to store or transmit Malicious Code; (vi) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (vii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes; (viii) reverse engineer, decompile or disassemble the Services or attempt to gain unauthorized access to the Services or their related systems or networks; or (ix) use or access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services. nGUVU reserves all other rights not expressly granted to Customer hereunder.
5.2 Notices. Customer shall not remove any Intellectual Property Rights notice that appear on the Documentation or are displayed through or embodied in the Services.
6. INTELLECTUAL PROPERTY
6.1 nGUVU Property and Licenses.
(a) Ownership. Except as expressly set out in an Order Form, nGUVU (or its licensors, including Third Party Material licensors, if applicable) retains any and all Intellectual Property Rights in and to: (i) the Services, including any enhancements, upgrades or other modifications to the Services; (ii) nGUVU IP; (iii) any updates, upgrades, revisions, modifications to or compilation constituted from any of the foregoing; (iv) the Documentation relating to any of the foregoing; (v) all nGUVU Trademarks (including the “nGUVU” and “nGAGEMENT” trademarks and logos); and (vi) all Intellectual Property Rights related to any of the foregoing. Customer will acquire no rights or licenses to any nGUVU property unless otherwise expressly provided in this Agreement.
(b) Feedback. nGUVU shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Services that Customer (including any of the Users) may, alone or jointly with nGUVU, propose or make during the term of this Agreement (collectively, “Feedback”). Customer hereby irrevocably (i) assigns all right, title and interest in and to the Feedback to nGUVU and (ii) waives in favour of nGUVU, its successors and assigns any and all moral rights that Customer has or may have in the Feedback in each jurisdiction throughout the world, to the fullest extent that such rights may be waived in each respective jurisdiction. Furthermore, Customer agrees to provide nGUVU such assistance as it may require to document, perfect, and maintain nGUVU’s rights to the Feedback.
(c) License – Third Party Material. To the extent Third Party Material is included, embodied in or otherwise required to use the nGUVU IP that is subject to the license granted to Customer in accordance with Section 6.1(b) above, nGUVU shall grant or obtain for the benefit of Customer a license as required (and solely to the extent required) in order to use such Third Party Material in connection with the Services.
6.2 Customer Property and Licenses.
(a) Ownership. nGUVU acknowledges and agrees that Customer owns all right, title, and interest in Customer Data (and all copies thereof), Customer Applications and Customer Trademarks, including all Intellectual Property Rights related thereto.
(b) License – Customer Property. Customer grants nGUVU a royalty-free, worldwide, non-exclusive, non-transferable (except as provided in Section 15.7 of this Agreement) and non-sublicensable (except to nGUVU’s Affiliates and subcontractors) license to use, copy, reproduce, display, process and transmit, Customer Data, Customer Applications and Customer Trademarks (subject to paragraph (c) below) for the purposes of, and only to the extent necessary for, the provision of the Services. Customer represents and warrants to nGUVU that (i) it has all necessary rights to Customer Data, Customer Applications and Customer Trademarks to grant nGUVU the licenses granted hereunder; and (ii) to its reasonable knowledge, any licenses granted hereunder to nGUVU does not breach or violate any third party Intellectual Property Right.
(c) License – Customer Trademarks. The Customer Trademarks license granted to nGUVU in accordance with paragraph (b) above shall be subject to the following restrictions: (i) the use of Customer Trademarks shall be in accordance with Customer’s specifications provided in writing to nGUVU; (ii) nGUVU shall provide Customer with an opportunity to review and approve all use of Customer Trademarks; and (iii) all use by nGUVU of Customer Trademarks shall ensure to Customer’s benefit.
(d) No Other Right. Subject to the rights granted by Customer under this Agreement, nGUVU acquires no right, title or interest from Customer or Customer’s licensors under this Agreement in or to Customer Data, Customer Applications or Customer Trademarks, including any Intellectual Property Rights therein.
7. FEES; TAXES
7.1 Fees. In consideration for the Services provided to Customer, Customer shall pay nGUVU the Fees for the total number of Billable Users for the billable period as set out in the relevant Order Form. Customer acknowledges and agrees that nGUVU may charge additional Fees and Expenses for the Services, should the work schedule be postponed or delayed for reasons that are attributable to Customer, provided that nGUVU shall use commercially reasonable efforts to mitigate the monetary effect of any postponement or delay. Customer understands that if any amount owed by Customer to nGUVU is overdue, nGUVU may decide, without limiting nGUVU's other rights and remedies, to suspend the Services to Customer until such amounts are paid in full, pursuant to Section 3.5.
7.2 Expenses. In addition to the Fees, Customer shall reimburse nGUVU for all reasonable expenses, including travel and living expenses, incurred by nGUVU (or its subcontractors) in connection with the provision of Services (collectively, the “Expenses”), provided, however, that such Expenses are agreed upon between the Parties in the applicable Order Form(s) or have been pre-authorized in writing by Customer. All Expenses are due within 30 days of the date of invoice.
7.3 Payment Terms. Payment terms are set out in the Order Forms. All payments must be made in the full amount, free of any deductions or withholdings and without exercising any right of set-off. Should Customer have or claim to have any recourse or claim of action, of whatever nature, against nGUVU, pursuant to a specific Order Form, Customer hereby renounces to the right to set-off the amount of such claim against sums that it may owe to nGUVU according to another specific Order Form, being understood that each Order Form shall be independent from each other.
7.4 Taxes. Unless expressly stated in an Order Form, the fees and costs set forth in this Agreement do not include any applicable sales, use, value added, property, excise or any other taxes or duties of any nature whatsoever. nGUVU will invoice Customer for any applicable taxes in relation to the Order Forms.
8. TERM and TERMINATION
8.1 Term. This Agreement will commence on the Effective Date and will remain in effect until terminated in accordance with the terms and conditions set forth herein. The provision of Services will commence on the Activation Date.
8.2 Termination. Unless otherwise set out in an Order Form, Customer may terminate this Agreement or any Order Form subject to a 30-day prior written notice sent to nGUVU. In addition, each Party may terminate this Agreement or any Order Form at any time: (i) if the other Party fails to perform any of its obligations under this Agreement or the Order Form, as applicable, and such failure is not remedied within 15 days from written notice thereof having been given to such defaulting Party; or (ii) upon written notice to the other Party, if such other Party takes or is required by any person with proper authority to take, any of the following actions: (a) an assignment, composition or similar act for the benefit of creditors; (b) an attachment or receiving of assets; (c) the filing of a petition for bankruptcy, insolvency or relief of debtors or the institution of any proceedings relating to bankruptcy, insolvency or relief of debtors; (d) committing or threatening to commit any act of bankruptcy; or (e) a winding-up, liquidation or dissolution of the business pursuant to an order of a court of competent jurisdiction.
8.3 Automatic Termination. This Agreement shall automatically terminate 2 years after the completion, expiry or termination, as applicable, of the last Order Form.
8.4 Recourse. The termination of this Agreement or any Order Form for any reason whatsoever will in no way affect either Party’s rights and recourse against the other Party, at law or in equity, for damages for failure to discharge an obligation under this Agreement or any Order Form.
8.5 Effect of Termination. Upon termination of this Agreement or of the Order Form: (i) nGUVU shall be entitled to the payment of any undisputed Fees accrued as of the date of termination hereof or thereof; and (ii) the Recipient (as defined below) shall return immediately to the Discloser (as defined below) all Confidential Information and all copies thereof in any form whatsoever under the possession or control of the Recipient that relate to this Agreement or the terminated Order Form(s), as applicable, or destroy same as directed by the Discloser.
8.6 Return of Customer Data. Upon request made by Client within 30 days after the termination of this Agreement, nGUVU will provide Customer, at not cost, with all Customer Data in a file or format satisfactory to Client, acting reasonably. After this 30-day period, nGUVU shall have no obligation to maintain or provide any of Customer Data and may thereafter, unless legally prohibited, delete all of Customer Data in nGUVU systems or otherwise in nGUVU possession or under nGUVU control. This Section 8.6 shall survive the termination of the Agreement.
8.7 Surviving Provisions. Sections 6, 8.5, 8.6, 8.7 and 10 to 15 of this Agreement shall survive the termination of this Agreement.
9. REPRESENTATIONS AND WARRANTIES
9.1 nGUVU to Customer. nGUVU represents and warrants to Customer that: (i) it is a corporation, duly incorporated, organized and validly existing under the laws of Canada; (ii) it has the full right, power and authority to enter into this Agreement; (iii) nGUVU’s entering into this Agreement shall not result in a breach of or constitute a default under any agreement or instrument to which it is a party; (iv) it has all necessary rights to provide the Services; (v) to its reasonable knowledge, the Services do not violate any third party Intellectual Property Right; (vi) nGUVU, its employees and subcontractors have the necessary knowledge, experience, and skills to perform the Services; (vii) nGUVU has and/or will acquire and maintain all license and permits required of them in order to perform the Services; and (viii) the Services will be performed in a competent and professional manner.
9.2 Customer to nGUVU. Customer represents and warrants to nGUVU that: (i) it has the full right, power and authority to enter into this Agreement; (ii) that Customer’s entering into this Agreement shall not result in a breach of or constitute a default under any agreement or instrument to which it is a party; and (iii) it has and will maintain in place during the term of this Agreement industry standard Malicious Code protection software and security for all of Customer’s systems and data, which such security includes firewalls, passwords, physical security, and access control policies.
10. WARRANTY DISCLAIMER
EXCEPT AS SET OUT IN SECTION 10, nGUVU expressly disclaims on its behalf and on behalf of its Affiliates, AND THEIR RESPECTIVE shareholders, officers, directors, employees, subcontractors, AGENTS, SUPPLIERS AND LICENSORS all representations, warranties and conditions express, legal or implied not contained herein, including representations, warranties and conditions of MERCHANTABILITY, quality, performance, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND non-infringement. Among others, nGUVU does not represent or warranty and expressly disclaims that: (i) THE SERVICES WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS; (II) THE OPERATION OF THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR, THAT THE RESULTS OBTAINED FROM THEIR USE WILL BE ACCURATE OR RELIABLE; (III) ALL PROGRAMMING OR SERVICE ERRORS CAN BE CORRECTED OR FOUND IN ORDER TO BE CORRECTED. nGUVU SHALL NOT BE RESPONSIBLE FOR AND DISCLAIMS ANY LIABILITY ASSOCIATED WITH ANY FAILURE TO PROCESS CREDIT CARD TRANSACTIONS.
11. LIMITATION OF LIABILITY
11.1 Exclusion of Certain Damages. nGUVU shall not be liable and assumes no responsibility for any loss or damages arising from or in connection with (i) the modification or alteration in any manner by Customer of any part of the Services; (ii) the use of any Customer Data, Customer Applications or other software, products or services not developed or provided by nGUVU; (iii) failure of Customer to meet its obligation hereunder to provide in a timely manner any information, access or assistance to nGUVU as required hereunder or as nGUVU requests in order to meet its obligations; or (iv) the access or use by Customer or the Users of any third party websites or resources that may be accessed from the Services platform through a link or otherwise.
11.2 Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, AND THEIR RESPECTIVE ITS SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, SUPPLIERS OR LICENSORS: (I) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXTRAORDINARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, LOSS OF USE, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF RELATING TO THIS AGREEMENT (INCLUDING ALL OF ITS RELATED ORDER FORMS), OR CAUSED BY ANY SERVICES, OR THE USE, MISUSE OR INABILITY TO USE THE SERVICES OR THE DOCUMENTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY OR UNDER ANY OTHER LEGAL THEORY.
11.3 Amount Limitation. THE TOTAL LIABILITY OF EITHER PARTY FOR CLAIMS BY THE OTHER PARTY OR ANY OTHER PERSON ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO nGUVU DURING THE 12-MONTH PERIOD PRECEDING THE EVENT FROM WHICH THE LIABILITY ARISES.
11.4 Infringement Limitation. If all or any portion of a Service is, in nGUVU’s opinion, likely to or otherwise does become the subject of a claim for infringement of any Intellectual Property Rights, nGUVU may, at its option and its sole cost and expense, either: (i) procure in favour of Customer the right to use the same as contemplated herein, (ii) modify the same to become non‑infringing provided that any such modification does not materially impair the ability of the Service or any part thereof to conform to and perform in accordance with the specifications therefor or the intended use of the Service; or (iii) replace the infringing part of the Service with compatible, feature and functionally equivalent, and non-infringing products or documentation, as the case may be. If in nGUVU’s reasonable opinion it is not commercially reasonable for it to comply with any of (i), (ii) or (iii) above, it may upon written notice to Customer, terminate this Agreement. The remedies set forth in this Section 11.4 are Customer’s sole remedy in the event of a potential infringement or a claim for infringement in connection with a Service.
11.5 Allocation of Risk. Customer acknowledges that nGUVU pricing reflects the allocation of risk under this Agreement and the limitation of liability specified herein.
Customer shall defend nGUVU, its Affiliates, and their respective shareholders, officers, directors, employees, subcontractors, agents, suppliers and licensors (“Customer Indemnified Parties") against any claim, demand, suit or proceeding made or brought against a Customer Indemnified Party by a third party alleging that Customer Data, Customer Applications or Customer use of the Services in breach of this Agreement, infringes or misappropriates its Intellectual Property Rights or other rights of a third party or violates applicable law (a “Claim”), and shall indemnify and hold harmless the Customer Indemnified Parties for any loss, claim, damages, cost, expenses, and other liability (including reasonable lawyers' and expert's fees and expenses) that any Customer Indemnified Party incurs a result of or in connection with such Claim; provided that the Customer Indemnified Parties: (i) promptly give Customer written notice of the Claim; (ii) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally releases the Customer Indemnified Parties of all liability); and (iii) provide to Customer all reasonable assistance, at Customer's expense.
13.1 Prior Non-Disclosure Agreement. If the Parties have entered into a non-disclosure agreement prior to the Effective Date, such agreement is hereby terminated and replaced in its entirety by the terms of this Section 13.
13.2 Obligation of Confidentiality. The Party (“Recipient”) receiving from the other Party (the “Discloser”) any Confidential Information, or otherwise obtaining any Confidential Information, shall keep confidential Discloser’s Confidential Information and shall protect Discloser’s Confidential Information with the same degree of care as Recipient employs in the protection of its own confidential and proprietary information, but at least with a reasonable degree of care. Without limiting the foregoing, Recipient shall not copy, reproduce, disclose, circulate or publish the Confidential Information of Discloser or permit such action, except as reasonably required for the purpose of this Agreement or pursuant to applicable laws, directives, policies or procedures. Recipient shall disclose Confidential Information only to those of its employees, consultants and subcontractors (including, without limitation, its legal advisors) who have a need to know the Confidential Information for the purpose of this Agreement or as permitted herein. Recipient remains liable and responsible for any breach of the terms of this Section 13 made by such employees, consultants or subcontractors (including for greater certainty, in the case of Customer, the Users). For greater clarity, any disclosure of Confidential Information permitted by Section 15.1 of this Agreement will not constitute a breach of this Section 13.
13.3 Use of Confidential Information. Recipient shall not use the Confidential Information of Discloser in any manner except as reasonably required for the purpose of this Agreement or as permitted herein.
13.4 Legal Disclosure. In the event that Recipient becomes legally compelled to disclose any portion of the Discloser’s Confidential Information, Recipient shall forthwith give notice thereof to Discloser and shall collaborate with same in good faith and on a reasonable basis in order to prevent or limit the disclosure or obtain any appropriate protective order or measure. In the event that disclosure may not be prevented, that the protective order or other measure is not obtained or that Discloser waives compliance with this provision, Recipient shall disclose only that portion of the Confidential Information which is legally required (as reasonably determined by Recipient) and exercise reasonable efforts to obtain reliable assurance that the confidentiality of the disclosed Confidential Information will be ensured in accordance with the terms hereof.
13.5 Injunctive Relief. Each Party acknowledges that the restrictions contained in this Section 13 are reasonable and necessary to protect the other Party’s legitimate interests. Customer understands and agrees that the remedies at law for the violation of any of the covenants or provisions of this Section 13 will be inadequate, that such violations will cause irreparable injury within a short period of time, and that nGUVU shall be entitled to preliminary injunctive relief and other injunctive relief against any such violation without the necessity of proving actual damages. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all other remedies nGUVU shall have at law and in equity for the enforcement of those covenants and provisions.
13.6 Assistance. Each Party agrees that it shall notify the other Party if it becomes aware of, or has reasonable grounds to suspect, that the unauthorized disclosure of the Confidential Information of the other Party has occurred or is likely to occur.
Each Party agrees that, during the term of this Agreement and for a period of 12 months after the termination of this Agreement (or the last Order Form, whichever occurs last), it shall not, directly or indirectly, without the prior written consent of the other Party, hire any employee of the other Party or solicit, induce or attempt to induce any person who is an employee of the other Party or was an employee during the 6-month period immediately preceding such solicitation, to terminate his or her employment with the other Party unless mutually agreed by both Parties in writing. General advertising performed by one Party and not specifically directed at employees of the other Party shall not be deemed a violation of this Section 14. In the event a Party breaches this Section 14, the breaching Party shall be liable to the aggrieved Party for an amount equal to 100% of the annual base compensation of the relevant personnel in his/her new position. Although such payment shall be the aggrieved Party’s exclusive means of monetary recovery from the breaching Party for breach of this Section 14, such a breach shall be considered a material breach of this Agreement and the aggrieved Party’s remedies of termination, injunction and damages shall be cumulative.
15. General Provisions
15.1 Publicity. Except in any proceeding to enforce the provisions of this Agreement or except as otherwise required by law, neither Party shall publicize or disclose to any third party the existence or provisions of this Agreement or any of the fees, terms or conditions herein, without the prior written consent of the other Party. Notwithstanding the foregoing, Customer acknowledges and agrees that nGUVU may mention, in its corporate brochures, marketing material, press releases and website, that Customer is a customer of nGUVU and uses the Services. In that regard, Customer agrees that nGUVU may use the corporate names and logos of Customer, subject to applicable Customer logo and similar policies.
15.2 Subcontract. nGUVU may subcontract any of or all of its obligations under this Agreement to any third party.
15.3 Dispute Resolution. Any disputes arising out of, or in any manner relating to this Agreement, will be subject to the following dispute resolution procedure: (i) if the Customer Project Manager and the nGUVU Project Manager cannot resolve a dispute in good faith within 15 days, such dispute will be documented in writing and identical copies will be submitted for resolution to each Parties’ senior management team; and (ii) if the Executive sponsors cannot resolve the dispute in good faith within 30 calendar days upon receipt of notice of such dispute, then the Parties shall be entitled to submit such dispute to the competent courts in accordance with Section 15.4 below.
15.4 Governing Law; Jurisdiction. This Agreement will be governed by, interpreted and construed in accordance with the laws of the Province of Québec, Canada and the laws of Canada applicable therein, other than rules governing conflicts of laws. Each of the Parties agrees that any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, which has not been resolved in accordance with the terms of Section 15.3 above, shall be submitted to the exclusive jurisdiction of the courts of the Province of Québec, Canada (district of Montréal). The foregoing choice of jurisdiction and venue shall not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction. The Parties expressly disclaim applicability of the terms of the United Nations Convention of Contracts for the International Sale of Goods and any legislation implementing such Convention will not apply to this Agreement nor to any dispute arising therefrom.
15.5 Relationship of Parties. This Agreement is an agreement between separate legal entities and neither Party is the agent or employee of the other for any purpose whatsoever. The Parties do not intend to create a partnership or joint venture between themselves. Neither Party shall have the right to bind the other to any agreement or to incur any obligation or liability on behalf of the other Party.
15.6 Entire Agreement. This Agreement (including all related Order Forms which form and integral part thereof), constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous agreements or representations or warranties, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party; no other act, document, usage or custom will be deemed to modify this Agreement.
15.7 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed; provided however that any Party may without such consent assign this Agreement (i) to any Affiliate of such Party or (ii) to a person or entity who acquires all the shares or all or substantially all of the assets or business of such Party whether by sale, merger or otherwise, and in each case (i) and (ii) who agrees to in writing to abide by the terms and conditions of this Agreement.
15.8 Successors and Assigns. All obligations set forth in this Agreement will bind and ensure to the benefit of the respective successors and permitted assigns of the Parties.
15.9 Severability. If any of the provisions contained in this Agreement are found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not be in any way affected or impaired hereby.
15.10 Waiver. The failure of a Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or of the right of such Party to enforce such provision and every other provision.
15.11 Notice. All notices, demands or other communications required or permitted to be given or made under this Agreement shall be in writing and delivered personally or sent by prepaid registered mail or recognized overnight carrier to the address set out below for nGUVU and to the address set out in the Order Form for Customer, or at such other address as a Party may by notice advise. All notices shall be deemed to have been given and received on the next business day following the date of delivery.
nGUVU Technologies Inc.
1400 Metcalfe, Suite 200
Montreal, Quebec H3A 1X2
Attention : CEO
Customer agrees to receive electronic notices from nGUVU, which will be sent by email to the email address provided by Customer in the Order Form. Such notices are effective on the date they are sent, whether or not Customer actually receives the email. Customer is responsible for ensuring that the provided Customer email address is accurate and current.