Orchestry Software as a Service Agreement

This Orchestry Software-as-a-Service Agreement (“SaaS Agreement” together with any Order Form, as amended from time to time, collectively the “Agreement”) is a binding agreement between ORCHESTRY SOFTWARE INC. (“Provider”, “us”, “our”, or “we”) and the person or entity accessing, downloading, installing, or otherwise using the Service (“Customer”, “you”, or “yours”). Provider and Customer will be referred to together as the “Parties” and each a “Party”.

BY USING THE SERVICE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS, AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 15.4. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICE. CUSTOMER REPRESENTS AND WARRANTS TO PROVIDER THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE SERVICE ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO PROVIDER THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

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 Provider in an aggregated 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 (a) who are authorized by Customer to access and use the Service under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Service has been purchased hereunder. For greater certainty, Customer will have a specific number of Authorized Users, which will be set out in the Order Form.

“Claim” means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.

“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.

“Customer Elected Azure Data” means the data that Customer can elect to self-host and as denoted on the Orchestry Data Storage page (https://www.orchestry.com/orchestry-data-storage).

“Customer Elected Hosting Services” has the meaning as out in Section 5.2(a).

“Customer Microsoft 365 Tenant Data” means the data hosted in Customer’s secure data storage system, and as denoted on the Orchestry Data Storage page (https://www.orchestry.com/orchestry-data-storage).

“Confidential Information” has the meaning set out in Section 7.1.

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

“Feedback” has the meaning set out in Section 8.3.

“Fees” has the meaning set out in Section 6.1(a).

“Free-Trial Period” has the meaning set out in Section 14.

“Intellectual Property Rights” means any 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 rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“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” or “Loss” means any and all losses, damages, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations.

“Orchestry Azure Data” means the data hosted in Provider’s secure data storage system, and as denoted on the Orchestry Data Storage page (https://www.orchestry.com/orchestry-data-storage).

“Order Form” means an order form that references the SaaS Agreement and is provided either: (a) by Provider, or (b) Reseller, if Customer is purchasing the Service directly from one of Provider’s Resellers. The Order Form will set out the Service Start Date, the Term of the subscription, the Service 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 Order Form, when agreed to by Customer, is a legally binding agreement and forms a part of this Agreement.

“Personal Information” means information about an identifiable individual transferred by Customer, or its permitted agents, to Provider hereunder.

“Provider IP” means (a) the Service; (b) the Documentation; (c) anything used, developed, or delivered by or on behalf of Provider under this Agreement; (d) all Provider Confidential Information, including any reports generated from the Service or any Aggregated Statistics; (e) any modifications to the foregoing (a) to (d); and all Intellectual Property Rights to the foregoing (a) to (e), provided that Provider IP 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 Provider’s Resellers, 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 Reseller has entered into a Reseller Agreement with Provider, pursuant to which, Reseller is granted the right to sell, market and promote the Service to Customer.

“Service Start Date” means the service start date set out in the Order Form, or the date Customer installs or accesses the Service, whichever is earlier.

“Service Suspension” has the meaning set out in Section 2.5.

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

“Term” has the meaning set out in Section 13.1.

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

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

2. ACCESS AND USE

2.1 Provision of Access. Subject to the terms and conditions of this Agreement, Provider will make the Service available to Customer during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein and in the applicable Order Form. Such use is limited to Customer’s internal use.

2.2 Documentation Licence. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a revocable, non-exclusive, non-sublicensable, non-transferable licence to use the Documentation during the Term solely for the purpose of use and receipt of the Service.

2.3 Use Restrictions. Customer will not, and will not permit others to, use the Service for any purposes beyond the scope of the access granted in this Agreement. Customer will not at any time, directly or indirectly, and will not permit any Authorized Users to: (a) copy, modify, or create derivative works of the Service or Documentation, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service or Documentation; (c) 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; (d) remove any proprietary notices from the Service or Documentation; (e) use the Service or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person, or that violates any applicable Law; or (f) use or access the Service to create, collect, transmit, store, use or process any Customer Data that: (i) Customer does not have the lawful right to create, collect, transmit, store, use or process; (ii) violates any applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (iii) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data.

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 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: (a) Provider reasonably determines that (i) there is a threat or attack on the Service; (ii) 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; (iii) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; or (iv) Provider's provision of the Service to Customer or any Authorized User is prohibited by applicable Law; (b) 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 (c) where Customer fails to pay the Fees payable to Provider for a period of sixty (60) days (any such suspension described in sub-clause (a), (b), or (c), a “Service Suspension”). Provider will 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 will 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 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. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Service. Customer agrees that Provider may (a) make Aggregated Statistics publicly available in compliance with applicable Law; and (b) 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 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 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 Customer accesses or purchases a Third Party Product from a Third Party Provider, it does so at its own risk. Customer’s relationship with the Third Party Provider is an agreement that does not involve or include Provider. 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. 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 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 will 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, Customer acknowledges that any outages, delays or interruptions to Third Party Products used in conjunction with Provider’s Service, may impact Provider’s Service under this Agreement. Provider will 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 will 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 will cause Authorized Users to comply with such provisions.

4.2 Maintenance and Support. Customer is entitled to general support from Provider as follows: (a) Documentation provided by Provider to Customer; (b) and general troubleshooting through Provider’s helpdesk, provided that such general troubleshooting will be limited to the Service and will not apply to any services provided by Third Party Providers. Support and service levels will be referenced on 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 will be based on priority, all of which will be updated from time to time by 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. The Parties acknowledge and agree that Provider is not responsible for providing technical support or maintenance to Customers for the Third Party Products, including the Service incorporated in or used with the Third-Party Products, provided that Provider will provide support to the extent provided in Section 4.2. For greater certainty, support related to the Third-Party Products will be the sole responsibility of the Third Party Providers.

5. DATA HOSTING AND PRIVACY

5.1 Orchestry Azure Data. At all times Provider will securely host all Orchestry Azure Data in accordance with applicable Law.

5.1 Customer Elected Azure Data. Customer may elect to either self-host Customer Elected Azure Data or have Provider host their Customer Elected Azure Data:

(a) If Provider provides Customer Elected Hosting Services to Customer, the Customer Elected Hosting Services will include, but are not limited to, the following: (i) operating and providing capacity to host Customer Elected Azure Data; (ii) maintaining secure data storage operations at all times, including having the financial responsibility for all such operations; (iii) other related services as agreed by the Parties from time to time (collectively, the “Customer Elected Hosting Services”); or

(b) Customer acknowledges and agrees that if Customer elects to self-host the Customer Elected Azure Data that Customer has and will retain sole responsibility for all Customer Elected Azure Data, including its content, use, access and security.

5.3 Customer Microsoft 365 Tenant Data. At no time will Provider store or host Customer Microsoft 365 Tenant Data. Customer has and will retain sole responsibility for all Customer Microsoft 365 Tenant Data, including its content, use, access and security.

5.4 Data Breach Procedures. Provider maintains a data breach plan in accordance with all applicable Laws and will implement the procedures required under such data breach plan on the occurrence of a data breach (as defined in such plan).

5.5 Privacy. To the extent Customer Data includes Personal Information, Provider will:

(a) only use Personal Information for the purposes of fulfilling Provider's obligations and exercising its rights in accordance with the Agreement and as otherwise instructed by Customer in writing from time to time;

(b) not transfer or disclose any Personal Information to any third party except as (i) permitted under the Agreement (including as contemplated by Sections 5.5(f) and 5.5(h) below); (ii) otherwise authorized by Customer in writing; or (iii) required under applicable Law (in which case Section 5.5(c) below will apply);

(c) where any disclosure or transfer of Personal Information is required by applicable Law, promptly notify Customer in writing before complying with any such requirement for disclosure (except where legally prohibited from doing so);

(d) implement commercially reasonable physical, technical, administrative and other organizational measures designed to safeguard the Personal Information against loss, theft, damage, or unauthorized or unlawful access or processing;

(e) only store and access Personal Information from servers located in Canada, the United Kingdom, the European Union, and the U.S. unless Customer provides prior written consent to store or access Personal Information in another jurisdiction;

(f) limit transfers of, or access to, Personal Information only to those employees, subcontractors, and service providers who need to have access to the Personal Information for the purposes of Provider fulfilling its obligations hereunder;

(g) notify Customer as soon as reasonably practicable upon becoming aware of any loss, theft, unauthorized access to or disclosure of Personal Information, and comply with all reasonable instructions of Customer in connection therewith;

(h) enter into a written agreement with each subcontractor or service provider that has access to Personal Information that imposes obligations on the subcontractor or third party that are substantially similar to those imposed on Provider in this Section 5.5; and

(i) upon the termination of this Agreement or at such earlier time as instructed by Customer in writing, Provider will delete (or, at Customer’s written request, return) the Personal Information, subject to Provider’s requirements to retain Personal Information in order to comply with its legal or regulatory obligations or as otherwise necessary in the context of any disputes or litigation. In such event, Provider will continue to protect the confidentiality of the Personal Information in accordance with applicable Law.

6. FEES AND PAYMENT

6.1 Fees. Customer acknowledges and agrees that:

(a) In consideration of the provision of the Service by Provider, Customer will pay Provider, or a Reseller (as applicable and as set out in Section 6.1(b) below), the fees set out in an Order Form (“Fees”). For clarity, the Fees will be based on the number of Authorized Users that use the Service on behalf of Customer. Provider reserves the right to regularly audit the number of Authorized Users of Customer to ensure that the Fees are calculated on a “per-Authorized User basis”.

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

6.2 Currency. All Fees and payments referenced hereunder will be in the currency as specified in the applicable Order Form.

6.3 Payment. For the Service, Customer will pay to Provider, or Reseller, as the case may be, the Fees and any such other amounts payable by Customer under this Agreement or the applicable Order Form, 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 Provider, or Reseller, as the case may be, to Customer, on or before the due date set forth in the applicable invoice. Each time that Customer renews its annual subscription, Customer will pay an additional annual Fee for the Service in the manner set forth herein.

6.4 Fixed Terms; Prices; Payment Methods. Subscription to 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 Customer, foreign exchange fees or differences in prices may apply, including because of exchange rates. Provider, or Reseller, as applicable, does not support all payment methods, currencies or locations for payment. If Customer renews its annual subscription term, and the payment method Customer uses is no longer valid and Customer does not edit its payment information, Customer authorizes Provider, or Reseller, as applicable, to continue billing Customer for the Service and Customer will remain responsible for uncollected amounts.

6.5 Payment Default. If Customer fails to make payment when due, without limiting Provider’s other rights and remedies: (a) Provider, or 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; (b) Customer will 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 (c) if such failure continues for thirty (30) days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Service until such amounts are paid in full.

6.6 Taxes. All Fees and other amounts payable by Customer as set out in the applicable Order Form 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.

7. CONFIDENTIAL INFORMATION.

7.1 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, “Confidential Information”). Confidential Information does not include information that (a) is publicly available prior to it being obtained by or becoming known to the receiving Party, or that subsequently becomes publicly available through no breach of this Agreement by receiving Party; (b) receiving Party can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to receiving Party in connection with or as a result of entering into this Agreement; (c) becomes known to receiving Party from a third party, where receiving Party had no reason to believe that such third party had any obligation of confidence with respect to such information, but only until receiving Party subsequently comes to have reason to believe that such information was subject to an obligation of confidence; or (d) receiving Party can demonstrate (through written records) was developed independently by it or by individuals employed or engaged by receiving Party who did not have any access to, or the benefit of, the Confidential Information of disclosing Party. The receiving Party will not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, or in the case of Customer, Authorized Users, 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 will 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 will 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. Notwithstanding the foregoing, Provider may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Section 7.1. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Service Start Date and will survive termination or expiration this Agreement.

8. INTELLECTUAL PROPERTY OWNERSHIP AND FEEDBACK

8.1 Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest 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.

8.2 Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title and interest, in and to the Customer Data. Customer acknowledges and agrees that Customer Data may 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 Customer and the applicable Third Party Providers. The Parties acknowledge and agree that Provider does not store any such Customer Data.

8.3 Feedback. To the extent that Customer or any Authorized Users submits ideas, suggestions, documents, or proposals regarding the Services to Provider (“Feedback”), Customer acknowledges and agrees that: (a) the Feedback does not contain confidential or proprietary information and Provider is not under any obligation of confidentiality with respect to the Feedback; and (b) Provider will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to Customer for such use.

9. REPRESENTATIONS AND WARRANTIES

9.1 From Customer. Customer represents, warrants, and covenants to Provider that Customer has obtained and provided, and will continue to obtain and provide, all necessary consents, rights and notices, and otherwise has and continues to have all necessary authority in and relating to the Customer Data (including Personal Information) for Provider to perform its obligations and exercise its rights under this Agreement in compliance with applicable Laws, including applicable privacy laws, and without infringing, misappropriating or otherwise violating any Intellectual Property Rights or other rights of any third party, and will inform Provider immediately if any such consents, rights or authority are withdrawn or can no longer be relied upon.

10. WARRANTY; DISCLAIMER

10.1 Disclaimer.

(a) THE SERVICE 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 SERVICE, 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.

(b) UNDER NO CIRCUMSTANCES WILL 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. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY PRODUCTS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY PROVIDER.

11. INDEMNIFICATION

11.1 Provider Indemnity.

(a) Provider will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any Claims by a third party (other than an affiliate of a Customer Indemnitee) that arise from or relate to any allegation that the Service infringes any third-party Intellectual Property Right in Canada. The foregoing obligation does not apply to any Claims or Losses arising out of or relating to any: (i) incorporation of the Service into, or any combination, operation, or use of the Service with, any products or services not provided or authorized by Provider; (ii) modification of the Service other than by Provider or with Provider's express written approval; (iii) unauthorized use of the Service; or (iv) Losses covered by Customer’s indemnity obligations in Section 11.2. SECTION 11.1 IS PROVIDER'S SOLE AND EXCLUSIVE LIABILITY, AND ANY CUSTOMER INDEMNITEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

(b) If the Service is, or in Provider's opinion likely to be, claimed to infringe, misappropriate, or otherwise violate any third party Intellectual Property Right, or if Customer’s use of the Service is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:

(i) obtain the right for Customer to continue to use the affected Service materially as contemplated by this Agreement;

(ii) modify or replace the Service, in whole or in part, to seek to make the Service (as so modified or replaced) non-infringing, in which case such modifications or replacements will constitute the Service under this Agreement; or

(iii) if Provider determines that neither of the foregoing two options are reasonably available, then this Agreement may be terminated by Provider and Provider's sole liability, in addition to the indemnification obligations herein, will be to refund prepaid unused Fees attributable to the Service that were to be provided after the effective date of termination.

THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.

11.2 Customer Indemnification. Customer will defend, indemnify and hold harmless Provider, its affiliates, subsidiaries and each of their respective directors, officers, employees, subcontractors and other representatives (each, a “Provider Indemnitee”) from and against any and all Losses incurred by a Provider Indemnitee arising out of or relating to any Claim by a third party that arise from or relate to: (a) Customer Data; (b) unauthorized use of the Service by Customer or any Authorized User; or (c) use of the Service (or any part of thereof) by Customer or any Authorized User in combination with any Third Party Product.

11.3 Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Claim for which such Party believes it is entitled to be indemnified pursuant to this Section 11. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Claim (although the Indemnitor will not settle any Claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its indemnity obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

12. LIMITATION OF LIABILITIES

12.1 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 (f) 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 RESELLER, AS APPLICABLE, UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL PROVIDER'S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

12.2 No Liability. if Customer uses a Reseller to subscribe to the Service, any and all disputes between Customer and Reseller will be solely between Customer and Reseller, and Provider will not be liable for any acts of Reseller of the Service. Customer acknowledges and agrees that Resellers of the Service are not affiliated with Provider and Provider is not responsible nor liable for any acts of Reseller.

13. TERM AND TERMINATION

13.1 Term. This Agreement will commence on the Service Start Date and will continue until terminated in accordance with this Agreement (the “Term”).

13.2 Termination for Cause. Either Party may terminate this Agreement, by giving to the other Party written notice of termination upon the occurrence of any of the following events:

(a) the other Party breaches or defaults on any of the material terms or conditions of this Agreement and fails to cure such breach or default within 30 days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately;

(b) the other Party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or

(c) any proceedings are instituted by or against the other Party under any insolvency laws or for reorganization, receivership or dissolution.

13.3 Termination between Reseller and Customer. Should Customer wish to terminate its use of the Service, and where Customer subscribes for the Service directly through a Reseller, Customer must notify Provider and Reseller of its intention to terminate. If Customer wishes to terminate its relationship with Reseller, and where Reseller billed Customer directly for the Service, Customer may continue to subscribe for the Service with Provider, provided that should Customer renew its annual subscription term, Customer will pay all Fees directly to Provider in accordance with Sections 6.1 and 6.3.

13.4 Consequences of Termination. Upon expiration or earlier termination of this Agreement, Customer will immediately discontinue use of the Service and, without limiting Customer’s obligations under Section 7.1, Customer will delete, destroy, or return all copies of the Provider IP and certify in writing to 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 Customer to any refund.

14. PROCESS TO SUBSCRIBE FOR THE SERVICE

14.1 Free Trial. Customer may, if it chooses, engage in a twenty-eight day (28) free trial (the "Free Trial Period") prior to agreeing upon a subscription set out in an Order Form. In the event that Customer chooses to engage in the free trial, Customer acknowledges that the terms of this Agreement apply to Customer during the Free Trial Period, and where Customer subscribes to the Service after the Free Trial Period, the terms of this Agreement will continue to apply thereto.

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

14.3 Order Form. If Customer wishes to subscribe to the provision of the Service by Provider, or in the event 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 will agree to an Order Form with Provider or 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 Order Form, 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 Order Form by Customer, subject to any audits/verifications of the number of Authorized Provider as conducted by Provider. Provider reserves the right to increase the Fees on renewal in accordance with the thirty (30) day notice provision set forth in Section 6.4. For greater certainty, the Fees set out in the Order Form will be paid to Provider, or Reseller, as applicable, for any and all terms subsequent to the Free-Trial Period.

15 MISCELLANEOUS

15.1 Survival. The following Sections of this Agreement will survive termination or expiration of this Agreement: 2, 3.2, 3.3, 4.1, 5, 6, 7, 9, 10, 11, 12 and 13.

15.2 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference (including any Order Form accepted by 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.

15.3 Force Majeure. In no event will 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.

15.4 Amendments and Modifications. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. Notwithstanding the preceding sentence, Provider may unilaterally amend this agreement, in whole or in part (each, an “Amendment”), by giving Customer 30 days prior notice of such Amendment or posting notice of such Amendment on Provider’s website. Unless otherwise indicated by Provider, any such Amendment will become effective 30 days after the date the notice of such Amendment is provided to Customer or is posted on Provider’s website (whichever is the earlier).

15.5 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, (a) 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 (b) 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.

15.6 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.

15.7 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.

15.8 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, will 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.

15.9 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.

15.10 Order of Precedence. To the extent of a conflict between this SaaS Agreement and any Order Forms:

(a) in respect of Section 8 (Intellectual Property Ownership and Feedback), Section 7 (Confidential Information), Section 10 (Warranty; Disclaimer), Section 11 (Indemnification), Section 12 (Limitation of Liabilities), and Section 15 (Miscellaneous, including this Section 15.10(a)), this SaaS Agreement will prevail; and

(b) for all other Sections, unless the Order Form expressly states that it modifies or varies this SaaS Agreement, this SaaS Agreement will prevail.

15.11 English Language. The Parties confirm that the essential stipulations of this Agreement reflect the mutual agreement of the Parties further to negotiation, and were not imposed by either Party, even when drawn up by one of the Parties. The Parties further confirm that it is the express wish of all Parties that this Agreement, all documents related to this Agreement and all communications between the parties in the context of the performance of this Agreement be in English only. Les parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des parties, même lorsque rédigées par l’une des parties. Les parties confirment également que c’est la volonté expresse des parties que la présente entente, tout document s’y rattachant et toute communication entre les parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.