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Orchestry Software as a Service Agreement

This Software as a Service Agreement (this “Agreement”) is a binding agreement between ORCHESTRY SOFTWARE INC. (“Provider”, “us”, “our” or “we”) and the person or entity purchasing the Service (“Customer”, “you” or “yours”). 

PROVIDER PROVIDES THE SERVICE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND IN THE APPLICABLE ORCHESTRY INVOICE, AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON/CHECKING THE “ACCEPT” BOX WHEN INSTALLING THE SERVICE, OR BY OTHERWISE PURCHASING THE SERVICE OFFERED BY THE PROVIDER BY SUBMITTING AN ORDER FORM (AS DEFINED HEREIN) AND FOR WHICH PROVIDER ISSUES AN ORCHESTRY INVOICE (AS DEFINED HEREIN), YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. 

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY ACCESS TO THE SERVICE THAT CUSTOMER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF PROVIDER’S SOFTWARE/SERVICE. 

1. Definitions. For the purposes of this Agreement, the following terms have the following meanings: 

Aggregated Statistics” means data and information related to Customer’s use of the Service that is used by the Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Service. 

Authorized Users” means any user using the Service within Microsoft Teams, accessing the Service through a web browser, or any users that are using the outputs of the Service, including but not limited to, Microsoft teams, Sharepoint Sites, and M365 Groups. Authorized Users includes Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Service under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Service has been purchased hereunder. For greater certainty, the Customer will have a specific number of Authorized Users, which will be set out in the Orchestry Invoice. 

Confidential Information” has the meaning set out in Section 6.1. 

Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Service. 

Documentation” means Provider’s user manuals, handbooks, and guides relating to the Service provided by the Provider to the Customer either electronically or in hard copy form/end user documentation relating to the Service as provided to the Customer. 

Feedback” has the meaning set out in Section 7.3. 

Fees” has the meaning set out in Section 5.1. 

Free-Trial Period” has the meaning set out in Section 13. 

Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, provincial, territorial, municipal or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.  

Losses” has the meaning set out in Section 10.1. 

Modifications” has the meaning set out in Section 10.1(f). 

Orchestry Invoice” means a document that Provider issues and that is agreed to by Customer in writing. The Orchestry Invoice is sent to either: (a) Customer after Customer requests the Service by submitting an Order Form to Provider, or (b) Reseller after Reseller requests the Service by submitting an Order Form to Provider, if Customer is purchasing the Service directly from one of the Provider’s authorized Resellers as contemplated by Section 5.1(b) of this Agreement. The Orchestry Invoice sets forth: the Service Start Date, the Term of the subscription, the Service the Customer is purchasing, including the Fees, the quantities purchased, the number of Authorized Users, and any other details specifically related to the Service. For greater certainty, the Orchestry Invoice, when agreed upon by both parties, is a legally binding agreement and forms a part of this Agreement. 

Order Form” means an order form that references this Agreement and is submitted to Provider by either: (a) Customer, or (b) Reseller, if Customer is purchasing the Service directly from one of the Provider’s authorized Resellers as contemplated by Section 5.1(b) of this Agreement. The Order Form will set forth information regarding Customer, the Service the Customer wishes to purchase, and any other details specifically related to the Service. The then current Order Form template will be made available by Provider directly to Customer or Reseller, as applicable.  

Provider IP” means the Service, the Documentation, and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Service, but does not include Customer Data. 

Quote” means a document that Provider issues to either: (a) Customer at Customer’s request, or (b) Reseller at Reseller’s request, if Customer is purchasing the Service directly from one of the Provider’s authorized Resellers as contemplated by Section 5.1(b) of this Agreement, and which sets out the Fees for potential provision of the Service by Provider to Customer. 

Reseller” means an authorized reseller of the Service whereby the Reseller has entered into a Reseller Agreement with the Provider, pursuant to which, the Reseller is granted the right to sell, market and promote the Service to the Customer. 

Service Start Date” means the date the Customer enters into this Agreement, the date the Customer installs the Service, or the date the Customer’s subscription commences, whichever is earlier. 

Service Suspension” has the meaning set out in Section 2.1. 

Service” means the software-as-a-service offering described in the Orchestry Invoice and installed/purchased by the Customer thereunder. 

Term” has the meaning set out in Section 12.1. 

Third Party Products” means the third party products services or products that are purchased independently by the Customer. They include (without limitation) Microsoft365 and Microsoft Team, which are products supported by our Service. 

“Third Party Providers” means third parties that provide Third Party Products to the Customer.

2. ACCESS AND USE 

2.1 Provision of Access. Subject to the terms and conditions of this Agreement, the Provider hereby grants Customer a non-exclusive, non-transferable right to access and use the Service during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein and in the applicable Orchestry Invoice. Such use is limited to the Customer’s internal use. 

2.2 Documentation Licence. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable licence to use the Documentation during the Term solely for the Customer’s internal business purposes in connection with its use of the Service.

2.3 Use Restrictions. Customer shall not use the Service for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Service or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to any software component of the Service, in whole or in part; (iv) remove any proprietary notices from the Service or Documentation; or (v) use the Service or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Law.

2.4 Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.

2.5 Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Service if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP, (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider, (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities, (D) subject to applicable Law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Provider's provision of the Service to Customer or any Authorized User is prohibited by applicable Law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third party services or Third Party Products required to enable Customer to access the Service; or (iii) where the Customer fails to pay the Fees payable to the Provider for a period of sixty (60) days (any such suspension described in sub-clause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Service following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. Provider will have no obligation to refund any of the Fees paid to the Provider during the Service Suspension.

2.6 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's use of the Service and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Service. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law. 

3. THIRD PARTY PROVIDERS

3.1 Service as an Add-On Service. Customer acknowledges and agrees that the Service offered by the Provider is an “add-on” service intended to operate in conjunction with Third Party Products offered by Third Party Providers. Customer further acknowledges that all browser and operating system requirements required to use the Provider’s Service will depend on and be based on the browser and operating system requirements of the Third Party Products.

3.2 Third Party Providers. If the Customer accesses or purchases a Third Party Product from a Third Party Provider, it does so at its own risk. The Customer’s relationship with the Third Party Provider is an agreement that does not involve or include the Provider. The Provider’s Service interacts with the Third Party Products and will depend on the availability of those Third Party Products and the features and functionality they make available to their users, which we do not control and may change without notice. If at any time a Third Party Provider stops making some or all of its features or functionality available, we may stop providing our Service and we will not be liable to you or any third party for any such change. 

The Customer further acknowledges and agrees that by accessing or enabling a service provided by a Third Party Provider, it grants them permission to access or otherwise process the Customer Data as required for the operation of the Third Party Provider’s services. Provider will not be liable for disclosure, use, changes to, or deletion of Customer Data or for losses or damages the Customer may suffer from access to Customer Data. Provider makes no representation and will have no liability or obligation whatsoever in relation to the use of, or correspondence, agreements or transactions with any Third Party Providers. Customer shall comply with all agreements and all other legal requirements that apply to their arrangements with Third Party Providers.

3.3 Outages or Delays caused by Third Party Providers. Without limiting Section 3.2, the Customer acknowledges that any outages, delays or interruptions to Third Party Products used in conjunction with the Provider’s Service, may impact the Provider’s Service under this Agreement. Provider shall not be liable or responsible for any such delays, outages or interruptions caused by a Third Party Provider, or related to any Third Party Products.  

4. CUSTOMER RESPONSIBILITIES  

4.1 General. Customer is responsible and liable for all uses of the Service and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use all reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Service, and shall cause Authorized Users to comply with such provisions.  

4.2 Maintenance and Support. Customer is entitled to general support from Provider as follows: (i) Documentation provided by the Provider to the Customer; (ii) and general troubleshooting through the Provider’s helpdesk, provided that such general troubleshooting shall be limited to the Service and shall not apply to any services provided by Third Party Providers. Support and service levels will be referenced on the Provider’s helpdesk system, which will include: hours of upgrades and system maintenance, support and FAQs, contact details, and expected turnaround times for issued which shall be based on priority, all of which will be updated from time to time by the Provider in its sole discretion. For greater certainty, Provider is not obligated to provide additional support beyond what is described in this Section 4.2.

4.3 Third Party Support or Modifications. The Parties acknowledge and agree that the Provider is not responsible for providing technical support or maintenance to Customers for the Third Party Products or any Modifications made to the Service (whether made by a Reseller of the Service or by the Customer), including the Service incorporated in or used with the Third-Party Products, provided that the Provider will provide support to the extent provided in the Section 4.2 hereof. For greater certainty, support related to the Third-Party Products or any Modifications shall be the sole responsibility of the Third Party Providers, the authorized Reseller of the Service (if the Reseller has made Modifications), or the Customer (where the Customer has made Modifications), as applicable. 

5. FEES AND PAYMENT

5.1 Fees. The Customer acknowledges and agrees that: 

  1. In consideration of the provision of the Service by Provider, the Customer will pay the Provider, or a Reseller (as applicable and as set out in Section 5.1(b) below), the fees (the “Fees”) set out in the Orchestry Invoice. For clarity, the Fees will be based on the number of Authorized Users that use the Service on behalf of the Customer. The Provider reserves the right to regularly audit the number of Authorized Users of the Customer to ensure that the Fees are calculated on a “per-Authorized User basis”. 

  2. In certain circumstances, the Customer may purchase the Service directly from one of the Provider’s authorized Resellers. Subject to the terms of the Customer’s agreement with the Reseller, the Customer may be required to pay the Fees for the Service directly to the Reseller. 

5.2 Currency. All Fees and payments referenced hereunder shall be in the currency as specified in the applicable Orchestry Invoice. 

5.3 Payment.
For the Service, the Customer shall pay to the Provider, or the Reseller, as the case may be, the Fees and any such other amounts payable by Customer under this Agreement or the applicable Orchestry Invoice, by direct bank transfer (only in the case of a Canadian banking institution) or wire transfer of immediately available funds to an account designated in writing by the Provider, or the Reseller, as the case may be, to the Customer, on or before the due date set forth in the applicable Orchestry Invoice. Each time that the Customer renews its annual subscription, the Customer shall pay an additional annual Fee for the Service in the manner set forth herein.

5.4 Fixed Terms; Prices; Payment Methods. Subscription to the Provider’s plans are for fixed terms, and the associated Fees payable for the Service are non-refundable. Prices for the Service are subject to change on thirty (30) days’ notice, provided that no price change will apply during the then-current annual subscription term. Depending on the jurisdiction of the Customer, foreign exchange fees or differences in prices may apply, including because of exchange rates. The Provider, or the Reseller, as applicable, does not support all payment methods, currencies or locations for payment. If the Customer renews its annual subscription term, and the payment method the Customer uses is no longer valid and the Customer does not edit its payment information, Customer authorizes the Provider, or the Reseller, as applicable, to continue billing the Customer for the Service and the Customer shall remain responsible for uncollected amounts.

5.5 Payment Default. If the Customer fails to make payment when due, without limiting the Provider’s other rights and remedies: (i) Provider, or the Reseller, as applicable, may charge interest on the past due amount at the rate of 2% per annum, or, if lower, the maximum amount permitted under applicable Law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Provider may suspend the Customer’s and its Authorized Users’ access to any portion or all of the Service until such amounts are paid in full. 

5.6 Taxes. All Fees and other amounts payable by Customer as set out in the applicable Orchestry Invoice are exclusive of taxes and similar assessments. Customer is responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, provincial, territorial or local governmental entity on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.

5.7 Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that the Customer has underpaid the Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5.5. Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 10% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement. 

6. CONFIDENTIAL INFORMATION.

6.1 Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, the “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable Law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Service Start Date and shall survive termination or expiration this Agreement. 

7. INTELLECTUAL PROPERTY OWNERSHIP AND FEEDBACK

7.1 Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP, and with respect to Third Party Products, the applicable Third Party Providers own all right, title and interest, including all intellectual property rights, in and to the Third Party Products. 

7.2
Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title and interest, in and to the Customer Data. The Customer acknowledges and agrees that Customer Data is or will likely be stored by the Third Party Providers, and that the collection, use, retention or storage of Customer Data by Third Party Providers is solely between the Customer and the applicable Third Party Providers. The Parties acknowledge and agree that the Provider does not store any such Customer Data.

7.3 Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

8. REPRESENTATIONS AND WARRANTIES

8.1 From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; and (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Service. 

9. WARRANTY DISCLAIMER

9.1 Disclaimer. 

  1. THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. 

  2. UNDER NO CIRCUMSTANCES WILL THE PROVIDER BE LIABLE FOR ANY THIRD-PARTY PROVIDER’S SERVICES OR THIRD PARTY PRODUCTS, INCLUDING THE FAILURE OF ANY SUCH THIRD PARTY PROVIDER SERVICES OR ACTIVITIES OF THIRD-PARTIES OR ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. 
10. INDEMNIFICATION

10.1 Customer Indemnification. Customer shall indemnify, and hold harmless, and at Provider’s option, defend the Provider and its officers, directors, agents, successors, and assigns (the “Indemnitees”) from and against any and all losses, damages, liabilities, costs (including legal fees) (“Losses”) resulting from any claim (including any third-party claim) arising from or in connection with: 

  1. violation of any applicable Law by the Customer or any of its Authorized Users; 

  2. breach of this Agreement by the Customer; 

  3. access to or use of the Service in a way that is expressly prohibited by this Agreement or otherwise outside the scope of access or manner or purpose of use described or contemplated anywhere in this Agreement; 

  4. any use of the Third Party Products, whether or not sold to the Customer by a Reseller of the Service; 

  5. negligent or wilful misconduct of the Customer or its Authorized Users; 

  6. any alteration or modification of the Service or any functionality related to the Service (including without limitation, customizations to templates of the Service), by or on behalf of the Customer or its Authorized Users or use of the Service by the Customer or its Authorized Users in combination with any apparatus, hardware, software, or service not authorized or approved by the Provider (collectively, the “Modifications”); or 

  7. any claim of infringement related to the Customer’s business, practices or procedures, including without limitation, any claim of intellectual property infringement related to the Modifications, 

provided that Provider will have the right, at its option, to defend itself against any such claim or to participate in the defence thereof by counsel of its own choice. 

11. LIMITATION OF LIABILITY

11.1 Limitation of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (e) ANY CLAIMS, LOSSES OR DAMAGES THAT ARISE FROM OR IN CONNECTION WITH A RESELLER OF THE SERVICE; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED TOTAL AMOUNTS PAID TO PROVIDER, OR THE RESELLER, AS APPLICABLE, UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000 WHICHEVER IS LESS.

11.2 No Liability. For further certainty and without limiting Section 11.1, the Provider shall have no liability or obligation for any action or any Losses to the extent that such action or losses arise out of or result from any of the events set forth in Section 10.1(a) – 10.1(g). Further, if the Customer uses a Reseller to subscribe to the Service, any and all disputes between the Customer and the Reseller shall be solely between the Customer and the Reseller, and Provider shall not be liable for any acts of the Reseller of the Service. Customer acknowledges and agrees that Resellers of the Service are not affiliated with the Provider and the Provider is not responsible nor liable for any acts of the Reseller.

12. TERM AND TERMINATION

12.1 Term. This Agreement will commence on the Service Start Date and will continue for the specified term set forth in applicable Orchestry Invoice (the “Term”).

12.2 Termination by Customer. The Customer may terminate this Agreement prior to the end of the Term for the Provider’s material breach of this Agreement by written notice specifying in detail the nature of the breach, effective in sixty (60) days unless the Provider first cures such breach.

12.3
Termination by Provider. The Provider may terminate this Agreement at any time and for any reason, with no further liability to the Customer upon such termination.

12.4 Termination between Reseller and Customer. Should the Customer wish to terminate its use of the Service, and where the Customer subscribes for the Service directly through a Reseller, the Customer must notify the Provider and the Reseller of its intention to terminate. If the Customer wishes to terminate its relationship with the Reseller, and where the Reseller billed the Customer directly for the Service, the Customer may continue to subscribe for the Service with the Provider, provided that should the Customer renew its annual subscription term, the Customer shall pay all Fees directly to the Provider in accordance with Sections 5.1 and 5.3.

12.5 Consequences of Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 6.1 (Confidentiality), Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle the Customer to any refund. 

13. PROCESS TO SUBSCRIBE FOR THE SERVICE


13.1 Free Trial. The Customer may, if it chooses, engage in a twenty-eight day (28) free trial (the "Free Trial Period") prior to the agreeing upon a subscription by agreeing to the Orchestry Invoice. In the event that the Customer chooses to engage in the free trial, the Customer acknowledges that the terms of this Agreement apply to the Customer during the Free Trial Period, and where the Customer subscribes to the Service after the Free Trial Period, the terms of this Agreement shall continue to apply thereto.

13.2 Quote. Upon completion of the Free Trial Period, or at any time during the Free Trial Period, Customer may request a Quote from Provider.

13.3 Order Form. If the Customer wishes to subscribe to the provision of the Service by the Provider, or in the event the Customer chooses to engage in the free trial and wishes to continue using the Service, prior to the end of the Free Trial Period, Customer shall submit an Order Form to the Provider or the Reseller, as applicable, and subscribe for an annual subscription term. The annual subscription term will automatically renew for one or more subsequent renewal periods as specified in the applicable Orchestry Invoice, unless either of the parties hereto gives written notice to the other party of non-renewal at least sixty (60) days prior to the end of the then-current term. The Fees will be based on the number of Authorized Users indicated on the Orchestry Invoice by the Customer, subject to any audits/verifications of the number of Authorized Provider as conducted by the Provider. The Provider reserves the right to increase the Fees on renewal in accordance with the thirty (30) day notice provision set forth in Section 5.4. For greater certainty, the Fees set out in the Orchestry Invoice shall be paid to the Provider, or the Reseller, as applicable, for any and all terms subsequent to the Free-Trial Period. 

14. MISCELLANEOUS

14.1 Survival. The following Sections of this Agreement shall survive termination or expiration of this Agreement: 2, 3.2, 3.3, 4.1, 5, 6, 7, 9, 10, 11, and 12.

14.2 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference (including any Orchestry Invoice accepted by the Customer), constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

14.3
Force Majeure. In no event shall Provider be liable to Customer or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, pandemic, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of Law or any action taken by a governmental or public authority, including imposing an embargo.

14.4 Amendments and Modifications. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.

14.5 Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

14.6 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

14.7
Governing Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the Laws of the Province of British Columbia and the federal Laws of Canada applicable therein.

14.8 Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of British Columbia and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding.

14.9 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of Law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. 

[End of Agreement]