END-USER SAAS AGREEMENT
This End-User SaaS Agreement (the “Agreement”) is between you and 10669750 CANADA INC (“SAFA”), a company duly incorporated under the laws of Canada, having its head office at 15 Chrisara Place, Portugal Cove-St. Philips, NL, Canada, A1M 2C2, for the access of SAFA’s software product identified in Exhibit A, and any updates or modifications to such software product as may be provided to you by SAFA, in its sole discretion (the “Software”), and associated media, printed materials, and “online” or electronic documentation provided by SAFA or its authorized distributor to describe the Software specifications (the “Documentation”) (collectively, the “Services”). “You” (also referred to as “Customer”) means you individually or the entity that you represent. If you are entering into this Agreement for or on behalf of an entity, you represent and warrant to SAFA that you have the legal authority to bind that entity to this Agreement.
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS, BROWSE OR OTHERWISE USE THE SERVICES.
License. Subject to the terms and conditions of this Agreement and for the Term, SAFA grants to Customer a personal, non-exclusive, non-sublicenseable, non-transferable, revocable right and license to access and use the Services solely for internal use in the field of analytics and information management (the “Right to Use”). The Right to Use is granted for the sole purpose of allowing Customer to use the Services and avail itself of the services provided for in this Agreement, to the exclusion of any other end-purpose. Without limiting the generality of the foregoing, the Right to Use does not authorize you to amend or adapt the Services in any manner whatsoever, or to permanently or temporarily reproduce the Software, its source code, or its object code except as required for the operation of the Software (namely, the object code to the front-end of the Software). The rights granted under this section apply to Customer and, if Customer is an organization, to its employees, members and/or consultants, as applicable.
Upgrades. SAFA may update the Services from time to time and shall make commercially reasonable efforts to advise Customer in advance of all updates that materially affect the functionalities of the Services.
Statement of Work. Certain types of services may require that SAFA and Customer agree to additional services not covered by this Agreement or to a more comprehensive description of Services than that contained herein. If so, the parties agree to enter into a statement of work. Any statement of work entered into by the parties shall reference the terms of this Agreement, describe the services to be performed and the hourly rates, per diems and other fees or costs as well the payment terms applicable to such services (each a “Statement of Work”). Upon the execution and delivery by the parties of a Statement of Work, such Statement of Work shall be deemed attached as an Exhibit to and made a part of this Agreement. In the event of a conflict or a discrepancy between this Agreement and a Statement of Work, this Agreement shall prevail. The defined term “Agreement” shall include any Statement of Work executed by the parties.
Customer Availability. In order to enable SAFA to fully perform Services hereunder, Customer shall provide such access and produce and make available the information, material and documentation reasonably necessary for SAFA to perform such Services.
Equipment. Customer shall procure and maintain all of the equipment, connections, software and material needed to use the Services within its information technology infrastructure, as same may be identified by SAFA from time to time.
Restrictions. Nothing in this Agreement shall be construed as an express or implied grant to Customer of any right to, and Customer shall not, nor shall Customer permit any third party, to (i) reproduce any of the Services, except as expressly permitted in this Agreement (ii) distribute, disclose or allow use of any of the Services in any format, through any timesharing service, service bureau, network or by any other means, to or by any third party other than its employees, subcontractors and clients for the Right to Use, (iii) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or ideas or algorithms of any of the Services’ underlying technology by any means whatsoever, (iv) use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Services or any portion of the Services or SAFA data, (v) post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Services, or (vi) attempt to circumvent or hack any security requirement or process in the use of the Services, or attempt to access any part of the Services (or any of their related systems, networks, servers or other equipment) for which Customer is not authorized to access, or attempt to disrupt in any manner the operation of the Services, its servers or networks, or disobey any requirements, procedures, policies or regulations of SAFA’s networks connected to the Services, or manipulate identifiers in order to disguise the origin of any content transmitted on Services, or the source of any content, (vii) modify or alter any of the Services in any manner whatsoever, such as but without limitation, removing proprietary rights notices, asset tags, brand labels or trademarks placed on the Services or any Third Party Services (as defined in article 8), or (viii) share passwords and/or user names (including its employees’ passwords and/user names) with unauthorized users. In addition to other rights and remedies under this Agreement and at law, SAFA shall be entitled to immediately suspend the Services and all access thereto in the event Customer breaches this Section.
Intellectual Property Rights and Ownership of the Services. Customer acknowledges and agrees that the Services, and any trademark, invention (patentable or unpatentable), patent application, patent, work, trade secret, source code, object code, algorithms, know-how and all intellectual property relating thereto (the “Intellectual Property”) is the sole and exclusive property of SAFA and its licensors and shall remain under their control. SAFA shall also be the sole owner of any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its employees, subcontractors and clients with respect to the Intellectual Property and Customer hereby irrevocably and exclusively assigns to SAFA, without limitation of any kind, all of its rights, titles and interests therein, SAFA accepting such assignment. Customer undertake to refrain from taking, authorizing or taking part in any action whatsoever that undermines, directly or indirectly, the scope and validity of the Intellectual Property.
Third Party Services. The Services may contain content from and hyperlinks to certain third parties’ websites, locations, platforms, and services (“Third Party Services”). SAFA shall not be responsible for the content of any Third Party Services. Any Third Party Services accessed from the Services are subject to the terms and conditions of those Third Party Services and you are responsible for reading those terms and conditions and complying with them.
Technical Support and Service Levels. The technical support and service levels provided by SAFA are set forth in Exhibit B hereto.
Collection and Use of Data. It is understood and agreed that, as between the parties, Customer owns or controls the personal information of its employees, subcontractors and clients collected through the Services (the “Customer Data”). Customer hereby grants SAFA a non-exclusive, irrevocable, worldwide, royalty-free license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the Services or otherwise fulfill its obligations or exercise its rights set forth herein. Customer acknowledges and agrees that SAFA (i) collects and anonymizes Customer Data through the Services (the “Anonymized Data”) and (ii) generates or creates data (including analytics and learnings) through the Services, including through the use of Anonymized Data (the “Derivative Data”). It is understood and agreed that Anonymized Data and Derivative Data are the property of SAFA and constitute Confidential Information of SAFA. This Section shall survive expiration or earlier termination of this Agreement.
Publicity. Each party shall have the right, at its own expense, to list the other party in its general listing of customers or business partners and issue press releases or marketing materials regarding thereto.
Privacy Protection. Each party shall preserve the security and confidentiality of personal information in the manner provided for in the present Article 12 and shall comply with the legislation and regulations that apply in such matters, including the Personal Information Protection and Electronic Documents Act (Canada), and any applicable legislation and regulations applicable in countries where such information is stored. Each party shall take reasonable measures to ensure the security and confidentiality of personal information it receives and to limit access to such information to those employees and representatives who may need to consult same in the context of the Services. In addition, Customer acknowledges and agrees that it is Customer’s obligation to inform Customer’s users and customers of the processing of Customer Data and information regarding Customer and Customer’s users pursuant to this Agreement and to ensure that such users and customers have given any necessary consent to such processing as required by all applicable data protection legislation. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and relevant intellectual property of all Customer Data and information regarding Customer, its users and customers.
Interruption and Related Services. Customer’s access and use of the Services may be interrupted from time to time due to the malfunction of equipment, periodic updating, maintenance or repair of the Services, or reasons not foreseeable by Customer or beyond Customer’s control.
Fees. Fees and payments payable to SAFA under this Agreement are as set forth in Exhibit C. SAFA may increase Fees at the beginning of any Renewal Term upon written notice to Customer as set forth in Exhibit C. In addition, SAFA reserves the right to increase Fees at the beginning of any Renewal Term for excessive support utilization as set forth in Exhibit C.
Representations and Warranties.
Mutual Representations and Warranties. Each party represents and warrants to the other that: (i) it has the full power and legal authority to enter into this Agreement and perform its obligations hereunder and the consent of a third party is not necessary for this Agreement to be binding on the parties; and (ii) each person signing this Agreement on behalf of an entity is duly authorized to bind such entity.
SAFA’s Representations and Warranties. SAFA represents and warrants that (i) the Services will be delivered in accordance with this Agreement.
Term and Termination.
Subject to earlier termination as provided below, the initial term of this Agreement is either one (1) month or one (1) year from the date of your agreement to this Agreement (“Initial Term”) depending on the option you selected, and shall automatically renew for successive one (1) month (in the case of a monthly subscription) or successive one (1) year period (in the case of an annual subscription) (“Renewal Term”). For the purpose of this Agreement (the Initial Term and the Renewal Term shall be collectively referred to as the “Term”).
SAFA may terminate this Agreement by giving a fifteen (15) days prior written notice (in the case of a monthly subscription) or a sixty (60) days prior written notice (in the case of an annual subscription) to you.
In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Term by giving fifteen (15) days (ten (10) days for non-payment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such fifteen-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.
Upon any termination of this Agreement, all rights granted herein shall terminate (except as otherwise expressly stated herein) and Customer shall make no further use of the Services. Customer shall pay any fees accrued or payable to SAFA up until the termination date.
All sections of this Agreement which by their nature should survive termination of this Agreement will survive termination, including without limitation accrued rights to payment, confidentiality obligations, representations and warranties, limitations of liability, disclaimers and indemnification obligations.
Software as a Service. Customer acknowledges and agrees that the information arising out of the performance of this Agreement and the running of the Software can result in Customer’s information being co-located with the information of third parties. For clarity, Customer specifically acknowledges and agrees that SAFA does not make available wholly dedicated server racks and spaces, unless otherwise specifically agreed in writing.
Credentials. Customer shall preserve the confidentiality of the authentication credentials given to it relating to the Software. Customer acknowledges that the purpose of the authentication credentials is to reserve access to the Software and to protect the integrity and availability thereof. Customer shall be fully responsible for the use made of the authentication credentials and for their safekeeping. Should Customer become aware of an unauthorized access to the Software, Customer shall promptly inform SAFA thereof.
DISCLAIMER. SAFA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES AS WELL AS ANY AND ALL CONTENT, SERVICES AND PRODUCTS ASSOCIATED WITH SAFA OR PROVIDED THROUGH THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS-IS” AND “AS AVAILABLE” BASIS. SAFA MAKES NO REPRESENTATIONS, CONDITIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF CONTENT, OR WHICH IS DERIVED FROM OR BY THE USE OF THE SERVICES, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. THE SUPPORTED THIRD-PARTY CONTENT PROVIDED THROUGH THE SERVICES IS PROVIDED “AS IS”. SAFA IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER, OF ANY CONTENT, SERVICES, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, THOSE OF INTERNET SERVICE PROVIDERS AND TELECOMMUNICATIONS PROVIDERS AS WELL AS FOR CONTENT PROVIDED BY OTHER USERS, OR OF ANY SOFTWARE OR HARDWARE. CUSTOMER AGREES TO USE THE SERVICES WITH ALL DUE CAUTION, AND TO TAKE EVERY PRECAUTION TO ENSURE THE INTEGRITY OF CUSTOMER DATA, HARDWARE AND SOFTWARE. CUSTOMER ACKNOWLEDGES THAT SAFA IS NOT RESPONSIBLE FOR THE INTEGRITY OF THE CUSTOMER DATA PROCESSED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, ITS COMPLETENESS, ACCURACY, VALIDITY, AUTHORIZATION FOR PROCESSING AND INTEGRITY OVER TIME AND SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, OF SUCH CUSTOMER DATA. CUSTOMER MUST NOTIFY SAFA OF ANY WARRANTY DEFICIENCY WITHIN THIRTY (30) DAYS OF THE OCCURRENCE OF THE NON-CONFORMING SERVICES IN ORDER TO RECEIVE ANY WARRANTY REMEDY. FOR ANY BREACH OF THE FOREGOING WARRANTIES, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE EITHER (I) FOR SAFA TO RE-PERFORM SUCH DEFICIENT SERVICES, OR (II) IF RE-PERFORMANCE IN COMPLIANCE WITH THIS WARRANTY IS NOT POSSIBLE OR PRACTICAL, THEN CUSTOMER SHALL BE ENTITLED TO A PRO-RATA REFUND OF FEES PAID TO SAFA DIRECTLY ATTRIBUTABLE TO THE DEFICIENT SERVICES, IN WHICH CASE EITHER PARTY MAY TERMINATE THE RELEVANT SERVICE AND CUSTOMER WILL OBTAIN A REFUND OF ANY PREPAID, UNUSED FEES FOR ANY SERVICES TERMINATED.
LIMITATIONS AND INDEMNIFICATION. SAFA SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO CUSTOMER, ITS AFFILIATES, EMPLOYEES, SUBCONTRACTORS OR AGENTS WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, OR FOR ANY DAMAGE, LOSS OF PROFIT, DATA, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM CUSTOMER’S USE OF THE SERVICES OR THIS AGREEMENT, EVEN IF SAFA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER SHALL DEFEND, FULLY INDEMNIFY AND HOLD HARMLESS SAFA AND ITS OFFICERS, DIRECTORS, AGENTS, OWNERS, SHAREHOLDERS AND EMPLOYEES, FROM AND AGAINST ALL CLAIMS, ACTIONS, PROCEEDINGS, COSTS, DAMAGES AND EXPENSES, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY’S FEES, IN WHOLE OR IN PART ARISING OUT OF OR ATTRIBUTABLE TO ANY BREACH OF THIS AGREEMENT BY CUSTOMER. EXCEPT IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS HEREUNDER, THE TOTAL LIABILITY OF SAFA TO CUSTOMER FOR ANY DIRECT DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY (AND NOT OTHERWISE REFUNDED TO) CUSTOMER TO SAFA UNDER THIS AGREEMENT FOR THE SERVICES WHICH FORM THE SUBJECT OF THE CLAIM AND WERE PROVIDED IN THE THREE MONTH PERIOD PRECEDING THE EVENT WHICH GAVE RISE TO SUCH CLAIM.
Essential Terms. The disclaimer of warranties and limitation of liability in sections 21 and 22 constitute an essential part of this Agreement. A fundamental breach or breach of a fundamental term of this Agreement by SAFA shall not limit the intended effect of sections 21 and 22 or any other provision of this Agreement which is intended to limit SAFA’s liability. SAFA acknowledges that, but for the disclaimer of warranties and limitation of liability, SAFA would not enter into this Agreement.
Either party acknowledges that it or its affiliates and their respective employees and representatives (the “Receiving Party”) may be exposed to or acquire information in connection with this Agreement that is proprietary or confidential to the other party or its affiliates and their respective employees and representatives (the “Disclosing Party”). Except as set forth herein, all information relating to the business, products and technology, and all information that a reasonable person would perceive as being confidential, of the Disclosing Party obtained by the Receiving Party whether before or after the execution of this Agreement in connection with this Agreement shall be deemed to be confidential and proprietary information of the Disclosing Party (“Confidential Information”) provided that Confidential Information shall not include information which the Receiving Party can demonstrate: (i) is readily available to the public in the same form through no fault of the Receiving Party; (ii) did not originate from the Disclosing Party and was lawfully obtained by the Receiving Party in the same form from an independent third party without any restrictions on disclosure; or (iii) did not originate from the Disclosing Party and was in the possession of the Receiving Party in the same form prior to disclosure to the Receiving Party by the Disclosing Party.
The Receiving Party acknowledges and agrees that the Confidential Information is proprietary information of the Disclosing Party, and may constitute intellectual property and trade secrets of the Disclosing Party, whether or not any portion thereof is or may be validly copyrighted or patented. The Receiving Party shall only use the Confidential Information of the Disclosing Party for the purpose of this Agreement and shall protect such Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care and confidentiality, which the Receiving Party utilizes for its own confidential information. The Receiving Party shall take all reasonable steps necessary to ensure that the Confidential Information of the Disclosing Party is not made available or disclosed by it or by any of its employees to any third person, firm or corporation except as permitted by this Agreement. The Receiving Party shall not make copies or reproductions of the Confidential Information of the Disclosing Party (in any medium) except as expressly permitted by this Agreement. In the event that the Receiving Party becomes legally compelled to disclose any of the Confidential Information of the Disclosing Party, then the Receiving Party shall notify the Disclosing Party immediately so that the Disclosing Party may have an opportunity to seek a protective order or other remedy. In the event that a protective order or other remedy is not obtained, the Disclosing Party shall disclose only that portion of the Confidential Information that is legally required to be disclosed.
Within thirty (30) days of termination of this Agreement, the Receiving Party shall either return all other Confidential Information in its possession to the Disclosing Party or destroy such other Confidential Information, at the option of the Disclosing Party, together with any and all written information, documents, materials, disks or other media containing computer programs or data and all other property and equipment which constitutes, contains or relates in any way to such other Confidential Information.
General. Customer may not assign this Agreement or any rights under this Agreement without the prior written consent of SAFA. If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement. If a party does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which such party has the benefit of under any applicable law), this will not be taken to be a formal waiver of such party’s rights and that those rights or remedies will still be available to such party. This Agreement represents the entire understanding and agreement between Customer and SAFA regarding the subject matter of the same, and supersedes and replaces all other previous agreements, including, without limitation all previously posted agreements. This Agreement, including its interpretation and effect, is governed by the laws applicable in the Province of Ontario, Canada, without regard to its conflict of law provisions. Both parties hereby agree to submit to the exclusive jurisdiction of the courts of the province of Ontario in respect to any claim, proceeding or action relating to or otherwise arising out of this Agreement or the Services howsoever arising, provided always that either party may seek and obtain injunctive relief in any jurisdiction in relation to this Agreement.
Exhibit A - SAFA Services
DESCRIPTION OF SOFTWARE
Please refer to the following link for the description of the Software www.safa.io.
Exhibit B - Technical Support and Service Levels
1 - Technical Support
Please refer to the following link for details on our technical support www.safa.io/tech
Please refer to the following link for our Service Level Agreement www.safa.io/sla.
Exhibit C - Fees
Pricing for this Agreement is based on the solution and associated pricing selected by Customer at www.safa.io.
Each party will bear its own costs in relation to this Agreement.