Last updated October 29, 2023
These General Terms and Conditions set forth the terms and conditions under which Outforce or an Affiliate (as defined below) of Outforce executing an Order:
a) accesses software as a service products and/or Consultant Services ordered by the Customer (the “SaaS Product(s)”);
b) licensed products and Consultant Services ordered by any Affiliate
c) those set-up and/or support services as described in an Order (the “Consultant Services Agreement”).
DEFINITIONS
1.1. For purposes of the General Terms and Conditions:
"Agreement” means these Terms, the applicable Order Terms, any and all supplements, schedules, exhibits, other attachments to the General Terms and the Order, and any and all Outforce Documentation, each as may be amended from time to time.
"Outforce Documentation” means the product service descriptions, the individual SaaS data sheets, notices file,
DPA (as defined below), country-specific terms, maintenance and support handbooks or user guides, and all other documents referenced in the foregoing, including references to information contained in a URL;
“Affiliate” means any affiliated entity that controls, is controlled by, or is under common control with the applicable party; and
“Control” means the legal, beneficial, or equitable ownership, directly or indirectly, of outstanding securities or
shares with sufficient voting power to elect a majority of the board of directors (or equivalent governing body).
2. RIGHT OF USE
2.1. Use of SaaS Product(s). Subject to the terms and conditions of the Agreement, including the payment of fees, Outforce grants Customer a subscription-based, non-exclusive, non sub licensable, and nontransferable right to access and use the SaaS Product(s) identified in the Order solely for the following purposes (collectively, “Use”): (a)to perform the functions described in the applicable Outforce Documentation, (b)for its internal business purposes, and
2.2. Use of Licensed Product(s). If the Order provides that Outforce is
licensing Licensed Product(s) to Customer, Customer shall comply with the Supplement for On-Premise Licensed Products to the General Terms and Conditions(the “Supplement”).
2.3. Additional Restrictions. Customer will not use the SaaS Product(s) or Licensed Product(s) in any manner not expressly and specifically
authorized by the Agreement, and will not cause or permit either its employees or its third-party contractors who are not competitors of Outforce (“PermittedContractors”) to use the SaaS Product(s) or Licensed Product(s) in any manner
not expressly and specifically authorized by the Agreement. In particular, and without limitation,Customer shall not, except as the Agreement expressly permits:
(a)copy, modify, or create derivative works or improvements of the SaaS Product(s)or Licensed Product(s);
(b)rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or
otherwise make available any of the SaaS Product(s) or Licensed Product(s) to
any Affiliate of Customer, on or in connection with the internet or anytime-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the SaaS Product(s) or Licensed Product(s), in whole or in part;
(d)bypass or breach any security device or protection used by the SaaS Product(s)or Licensed Product(s) or access or use the SaaS Product(s) or Licensed Product(s) other than by an Authorized User (as defined below); (
(e)input, upload, transmit, or otherwise provide to or through the SaaS Product(s)or Licensed Product(s), any information or materials that are unlawful or injurious, or contain, transmit, or activate any Malware (as defined below);
(f)damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the SaaS Product(s), Licensed Product(s), or Outforce 's
provision of services to any person or entity, in whole or in part;
(g)remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any SaaS Product(s), Licensed Product(s), or Outforce Documentation, including any copy thereof;
(h)access or use the SaaS Product(s) or Licensed Product(s) in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Outforce customer), or that violates any federal, state, provincial, regional, territorial and local laws, international
treaties, statutes, statutory instruments, ordinances, by-laws, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and
policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including all federal, state, provincial, regional, territorial and local banking laws, regulations, guidance, and policies), or any court of competent jurisdiction (“Law”);
(i)access or use the SaaS Product(s) or Licensed Product(s) for purposes of competitive analysis of the SaaS Product(s) or Licensed Product(s), the
development, provision, or use of a competing software service or product or any other purpose that is to Outforce ’s detriment or commercial disadvantage;
(j)access or use the SaaS Product(s) or Licensed Product(s) in, or in association with, the design, construction, maintenance, or operation of any hazardous
environments, systems, or applications, any safety response systems or other
safety-critical applications, or any other use or application in which the use or failure of the SaaS Product(s) or Licensed Product(s) could lead to personal injury or severe physical or property damage;
(k) otherwise access or use the SaaS Product(s) beyond the scope of the Use granted under this Article 2 (Rights of Use); (l) otherwise use the Licensed Product(s) beyond the scope of the Use granted in the Supplement for Licensed Products.
2.4. Enabling Software. The SaaS Product(s) may require the use of enabling software that Customer downloads to Customer systems to facilitate use of the SaaS Product(s). Customer may use enabling software only in connection with use of the SaaS Product(s) as specified in the ServiceDescription or Outforce Documentation. Enabling software is provided “AS-IS.”Terms and conditions related to such enabling software, if any, can be accessed in the applicable Service Description or Outforce Documentation.
2.5. Authorized Users. Subject to the terms and conditions of the Agreement, Customer may permit its employees and Permitted Contractors(together, “Authorized Users”) to Use the applicable SaaS Product(s), Licensed Product(s) and Outforce Documentation. Permitted Contractors may Use the SaaS Product(s), Licensed Product(s) and/or Outforce Documentation only for Customer’s business purposes and benefit. Customer is fully liable for the breach of the Agreement by, and the acts and omissions of, Authorized Users under the Agreement.
2.6. Monitoring of Use. Customer will monitor its own use of
the SaaS Product(s) and Licensed Product(s). Outforce may continuously monitor the SaaS Product(s), Licensed Product(s) and any other services it provides, including monitoring to verify Customer’s use thereof is in compliance with theAgreement.
2.7. Customer License Grant. Customer grants to Outforce a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display, distribute, and otherwise process any and all information, data, and other content, in any form or medium, that is collected, submitted, posted, displayed, downloaded, or otherwise received from or provided, directly or indirectly, by Customer or anAuthorized User by or through the SaaS Product(s) or Licensed Product(s)(“Customer Data”) as is reasonable or necessary for Outforce to perform or provide the SaaS Product(s), ConsultantServices, Deliverables (as defined in Section 4.4).
2.8. Modifications. The SaaS Product(s), LicensedProduct(s), Premium Support Services, Consultant Services, and Outforce Documentation may be modified by Outforce. Outforce will inform Customer of modifications by email, the support portal, release notes, or Outforce Documentation. If Customer establishes that a modification materially and adversely reduces the SaaS Product(s) or Licensed Product(s), Customer may terminate its subscriptions to the affected SaaS Product(s) or LicensedProduct(s) by providing written notice to Outforce within thirty days (30)after receipt of Outforce ’s notice.
2.9. Third-Party Services. The SaaS Product(s) and LicensedProduct(s) may include integrations with services and data made available by third parties that are accessed through the SaaS Product(s) or LicensedProduct(s) and are subject to the terms and conditions of those third parties.The Agreement does not apply to those services and data and they are not part of the SaaS Product(s) or Licensed Product(s).
3. PAYMENT
3.1. Fees. Customer shall pay Outforce the fees indicated on the Consultant Services Agreement. Such fees are payable per month unless such Order sets forth different payment terms. Unless otherwise provided in an Order, all fees are to be paid to Outforce within thirty (30) days of the date of invoice. Any late payment will be subject to any costs of collection(including reasonable legal fees) and will bear interest at the rate of one percent (1%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If Customer fails to make timely payment, Outforce may suspend access to the SaaS Product(s) or suspend Consultant Services.Disputed charges must be made in writing within thirty (30) days from the date of the invoice. Invoices will be sent by electronic delivery.
3.2. Taxes. The fees and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Outforce and hold Outforce harmless for all sales, use, VAT, excise, property or other taxes or levies which Outforce is required to collect or remit to applicable tax authorities.This provision does not apply to Outforce’s income or any taxes for which Customer is exempt, provided Customer has furnished Outforce with a valid tax exemption certificate.
4. LICENSED PRODUCTS/CONSULTANT SERVICES
4.1. Service Description. The Licensed Product(s) and ConsultantServices are described in the applicable Outforce Documentation.
4.2. Service Availability. Outforce will make the SaaS Product(s)available for Customer to Use as described in the Agreement. Outforce will use commercially reasonable efforts to achieve Outforce ’s availability goals as described in the applicable Service Descriptions. 4.4. Consultant Services. Outforce will perform the Consultant Services and will provide the deliverables described in the Order (“Deliverables”). Any additional scope or activities that extend beyond those set forth in the Order will require an additionalOrder or a change order executed by the parties.
5. OWNERSHIP
5.1. Reservation of Rights. Customer acknowledges that, subject to the rights granted herein, Customer has no ownership interest in the LicensedProduct(s), Deliverables, or other materials provided to Customer. 5.2. Marks and Publicity. (a)The trademarks, trade names, service marks, and logos, whether or not registered (“Marks”) of Outforce and the Marks of Customer are the sole and exclusive property of the respective owning party. (b)In recognition of the pricing provided under the Agreement, Customer shall(subject to its reasonable right to review and approve): (i)allow Outforce to include a brief description of the SaaS Product(s), LicensedProducts, Premium Support Services, Consultant Services, Deliverables, and/or other services provided to Customer in Outforce promotional materials, (ii)allow Outforce to make reference to Customer in case studies, ROI analyses, white papers and related marketing materials, (iii)serve as a reference to Outforce potential clients, (iv)provide interviews to the news media and provide quotes for press releases, (v)make presentations at conferences, upon Outforce ’s reasonable request and at Outforce’s cost, (vi)use the Customer’s marks product literature, press releases, social media and other marketing materials, and (vii)participate in case studies for the SaaS Products or Licensed Product(s) at the request of Outforce. Customer hereby consents to the receipt of marketing communications from Outforce. 5.3. Deliverables. All Deliverables produced by Outforce under the Agreement will not be considered to be works made for hire and will be exclusively owned by Outforce. Outforce hereby grants to Customer a worldwide, nonexclusive, limited license to reproduce, distribute, perform, and display(publicly or otherwise), the Deliverables solely in connection with Customer’sUse of the SaaS Product(s) or Licensed Product(s), as applicable, during the term of the Agreement. 5.4. Feedback. If Customer submits, orally or in writing, feedback, suggestions, or recommended changes to any of Outforce’s products and services, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”),then Customer shall assign and hereby assigns to Outforce all right, title, and interest in and to theFeedback, including any ideas, know-how, concepts, techniques, or otherintellectual property rights contained therein, and agrees that Outforce is free to use such Feedback, without anyattribution or compensation to Customer, for any purpose whatsoever.
6. CONFIDENTIALITY
6.1 Definition. “Confidential Information” means all information disclosed by the Discloser or its Representatives that is generallynot publicly known, whether tangible or intangible and in whatever form or medium provided and that is (a)marked as “Confidential” or the like or
(b)should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure. Customer Data is Confidential Information of Customer and shall be treated confidentially under Section 6.5 (Data Privacy).
6.2. Non-Disclosure. Each Party may disclose ConfidentialInformation (“Discloser”) to the other Party (“Recipient”) in connection with its performance under the Agreement (the “Purpose”). Recipient must: (a)hold in confidence and safeguard the Confidential Information of the Discloser from unauthorized use, access or disclosure using no less than a commercially reasonable degree of care; (b)not use or exploit the Confidential Information in any way except for thePurpose; and (c)not disclose or make available such Confidential Information (in whole or in part) to any person or entity other than to its Affiliates and its or their employees, consultants, and advisors (collectively, “Representatives”) who: (i)need access to such Confidential Information for the Purpose; and (ii)are bound by obligations with respect to Confidential Information consistent with, and no less protective than, the Agreement. Recipient is responsible for any and all breaches of the Agreement caused by its Representatives. Recipient must promptly report to Discloser any actual or suspected violation of the terms of the Agreement and take all reasonable further steps to prevent, control or remedy any such violation. 6.3. Exclusions. ConfidentialInformation does not include any information that:
(a)is or becomes generally available to the public other than as a result of Recipient’s or its Representatives’ breach of the Agreement;
(b)is obtained by Recipient or its Representatives on a non-confidential basis from a third-party that, to Recipient’s knowledge, was not legally orcontractually restricted from disclosing such information; or
(c) Recipient establishes, by documentary evidence,
(i)was in Recipient’s or its Representatives’ possession prior to Discloser’s disclosure hereunder; or
(ii)was or is independently developed by Recipient or its Representatives without using any Confidential Information of the Discloser.
6.4. Injunctive Relief. A party may seek injunctive or other equitable relief for an actual or threatened breach of this Article 6. 6.5. Data Privacy. Outforce ’s current Data Processing Addendum (“DPA”)provides additional data protection information regarding the types of CustomerData that may be processed, the processing activities involved, data protection features, and information on retention and return of Customer Data. Customer shall at all times be the sole owner of Customer Data. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data, and for obtaining all rights related toCustomer Data required by Outforce to provide the SaaS Product(s), Licensed Product(s), and Deliverables and to perform the Premium Support Services, Consultant Services, and other services ordered by Customer.
6.6. Customer Data Protection. Customer is responsible for taking necessary actions to order, enable, or use available data protection features for the SaaS Product(s) as set forth in the applicable Outforce Documentation and accepts responsibility for use of the SaaS Product(s) if Customer fails to take such actions, including meeting any requirement of Law. Outforce is not responsible for any backup, recovery or other steps required to ensure thatCustomer Data is recoverable in the case of data loss. Customer is solely responsible for backing up Customer Data on a regular basis and taking appropriate steps to safeguard and ensure the integrity of Customer Data.
6.7. Ownership of ConfidentialInformation. Nothing in the Agreement will beconstrued to convey any title or ownership rights:
(a)to the SaaS Product(s), Licensed Product(s), Outforce Documentation,Deliverables or to any patent, copyright, trademark, or trade secret or other intellectual property right or proprietary right embodied therein to Customer, or
(b)of a party’s Confidential Information to the other.
6.8. Statistical Information. Outforce may (a)compile statistical and other information related to the performance, operation and use of the SaaS Product(s) and other services, and (b)use data from the SaaS Product(s) and other services, including Customer’s use there of and Customer Data, in aggregated, anonymized form for security and operations management, to compile statistical and performance information, conduct analysis, and for research and development purposes. Outforce may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer's Confidential Information. Outforce retains all rights in such information.
7. WARRANTY
7.1. No Malware. Outforce applies processes and technologies to prevent the SaaS Product(s) from containing any viruses or any other contaminants (including codes, commands, instructions, devices, techniques, bugs, web bugs, or design flaws) that access (without authorization), alter, delete, threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, inhibit, or shut down computer systems, networks, infrastructures, devices, websites, databases, software or other data or property (“Malware”). Outforce warrants that it will apply the above preventative processes and technologies and will not knowingly insert any suchMalware into the SaaS Product(s).
7.2. Services Warranty. Outforce warrants that the Consultant Services performed hereunder shall be performed in a workmanlike and professional manner.
7.3. Disclaimer of Warranties. ANY AND ALL SAAS PRODUCT(S), LICENSED PRODUCT(S), PREMIUM SUPPORT SERVICES, PROFESSIONAL SERVICES, DELIVERABLES,CONFIDENTIAL INFORMATION, THIRD PARTY COMPONENTS (AS DEFINED IN THE SUPPLEMENT),Outforce INTELLIGENCE OPEN SOURCE COMPONENTS (AS DEFINED IN THE SUPPLEMENT) ANDALL OTHER TECHNOLOGY, SOFTWARE, SERVICES, DATA AND MATERIALS PROVIDED BY Outforce INTELLIGENCE ARE PROVIDED “AS IS”, “WHERE IS”, AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN ARTICLE 7 (WARRANTY)OF THESE GTC OR ELSEWHERE IN THE AGREEMENT, Outforce INTELLIGENCE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OR RESULTS TO BE DERIVED FROM THE USE OF OR INTEGRATION WITH ANY SAAS PRODUCT(S),LICENSED PRODUCT(S), PREMIUM SUPPORT SERVICES, PROFESSIONAL SERVICES,DELIVERABLES, CONFIDENTIAL INFORMATION, THIRD PARTY COMPONENTS, Outforce INTELLIGENCE OPEN SOURCE COMPONENTS OR ANY OTHER TECHNOLOGY, SOFTWARE,SERVICES, DATA OR MATERIALS PROVIDED BY Outforce INTELLIGENCE. NEITHER Outforce INTELLIGENCE (NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS)WARRANTS OR REPRESENTS THAT THE SAAS PRODUCT(S), LICENSED PRODUCT(S), PREMIUM SUPPORT SERVICES, PROFESSIONAL SERVICES, DELIVERABLES, CONFIDENTIAL INFORMATION, THIRD-PARTY COMPONENTS, Outforce INTELLIGENCE OPEN SOURCE COMPONENTS OR ANY OTHER TECHNOLOGY, SOFTWARE, SERVICES, DATA OR MATERIALS PROVIDED BY Outforce INTELLIGENCE TO CUSTOMER WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT ININTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY,TECHNOLOGY, SOFTWARE, DATA, CONFIDENTIAL INFORMATION, OR OTHER MATERIALS.
7.4. Warranty Exclusions. Notwithstanding anything to the contrary in the Agreement, any and all warranties are void if (a)Customer has made changes to the SaaS Products(s), Licensed Product(s), orDeliverables or has permitted any changes to be made other than by or with the express, written approval of Outforce;
(b)the SaaS Product(s) or Licensed Product(s), as applicable, are not used in accordance with the Agreement, including the Outforce Documentation;
(c)any non-conformity is caused by Customer or by any product or service not provided by Outforce; or
(d) the SaaS Product(s) or Licensed Product(s) is provided at no charge.
7.5. Remedy. Customer’s sole and exclusive remedies and Outforce’s entire liability for breach of the warranties under this Article7 (Warranty) will be:
(a)the re-performance of the deficient SaaS Product(s) or service, and
(b)if Outforce fails to re-perform, Customer may terminate the Agreement for the affected SaaS Product(s). Any termination must occur within three (3) months of Outforce ’s failure to re-perform.
8. INDEMNIFICATION
8.1. Customer Indemnity. Customer will defend at its expense any cause of action brought against Outforce, to the extent that such cause of action is based on any claim by a third party arising out of:
(a)Customer Data or
(b)any gross negligence, intentional misconduct or fraud of Customer. Customer will pay those costs and damages finally awarded against Outforce pursuant to any such claim or paid in settlement of any such claim if such settlement was approved in advance by Customer. Outforce may retain its own counsel at Outforce’s own expense.
8.2. Outforce Indemnity. Outforce will defend at its expense any cause of action brought against Customer, to the extent that such cause of action is based on a claim by a third party that the SaaS Product(s) orLicensed Product(s), as provided by Outforce to Customer, infringes a Canadian or United States patent, a Canadian or United States copyright, or a Canadian or United States trade secret of a third party. Outforce will pay those costs and damages finally awarded against Customer pursuant to any such claim or paid in settlement of any such claim if such settlement was approved in advance by Outforce. Customer may retain its own counsel at Customer’s own expense.
8.3. No Liability. Outforce will have no liability for any claim of infringement based on:
(a)use of the SaaS Product(s) as applicable, in combination with data, software, hardware, equipment, technology or other materials not provided by Outforce or authorized by Outforce in writing;
(b)modifications to the SaaS Product(s) or Deliverables not made by Outforce;
(c)Customer Data;
(d)Third-Party Components; or
(e)Outforce Open Source Components.
8.4. Remedies. Should the SaaS Product(s) or LicensedProduct(s) become, or in Outforce ’s opinion is likely to become, the subject of a claim of infringement, Outforce may, at its option,
(a)obtain the right for Customer to continue using the SaaS Products,
(b)replace or modify the SaaS Product(s) or Licensed Product(s) so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or
(c)if neither of the foregoing options is commercially reasonable, terminate the access and Use of the SaaS Product(s) or Licensed Product(s). Upon such termination, Customer shall cease Using the SaaS Product(s) or Licensed Product(s) and Outforce will refund to Customer, as Customer’s sole remedy and Outforce’s sole liability for such termination, the amount of the unused portion of prepaid fees for the terminated SaaS Product(s) or Licensed Product(s)calculated as of the effective date of termination.
8.5. Exclusive Remedy. The provisions of Article 8 (Indemnification) state the sole, exclusive, and entire liability of the parties, their Affiliates, and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third-party claims and to the infringement or misappropriation of third-party intellectual property rights.
8.6. Indemnification Procedures. Each party’s obligations as set forth in this Article are subject to the other party: (a)giving the other party prompt written notice of any such claim or the possibility thereof; (b)giving the other party sole control over the defence and settlement of any such claim; and (c)providing full cooperation in good faith in the defence of any such claim.
9. LIMITATION OF LIABILITY
9.1. Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HERE UNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE),ATTORNEY’S FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE,EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SAAS PRODUCT(S),LICENSED PRODUCT(S), PREMIUM SUPPORT SERVICES, OR PROFESSIONAL SERVICES, GIVING RISE TO SUCH DAMAGES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM. THE LIMITATIONS SET FORTH IN THIS ARTICLE 9(LIMITATION OF LIABILITY) SHALL NOT APPLY TO CUSTOMER’S OBLIGATION TO PAY FOR FEES DUE UNDER THE AGREEMENT. NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF A DISCLOSURE OF CUSTOMER DATA CAUSED BY THE WILLFUL OR GROSSLY NEGLIGENT ACTS OR OMISSIONS OF Outforce INTELLIGENCE, THE LIMITATION OF LIABILITY FOR DIRECT DAMAGES HEREIN SHALL BE RAISED TO TWO (2) TIMES THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OF DISCLOSURE THAT GAVE RISE TO THE CLAIM.
9.2. Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL,INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS,BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.
9.3. Applicability of Limitations. THE FOREGOING LIMITATIONS APPLY EVENIF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
10. TERM AND TERMINATION
10.1. Subscription Term. The term of the Agreement shall begin on the effective date of the Order and shall continue for the term set forth in the Order. The term of the Agreement shall renew automatically for the period set forth in the Order.
10.2. Termination by Outforce. The Agreement may be terminated by Outforce:
(a) if Customer fails to make any payments due hereunder within fifteen (15) days of the due date; or
(b)on thirty (30) days’ written notice to Customer if Customer fails to perform any other material obligation set forth in the Agreement, and such failure is not cured within such thirty (30) day period.
10.3. Termination by Customer. The Agreement may be terminated byCustomer on thirty (30) days’ written notice to Outforce if Outforce fails to perform any material obligation set forth in the Agreement, and such failure is not cured within such thirty (30) day period.
10.4. Suspension. Outforce has the right to suspendCustomer’s Use of the SaaS Product(s), Premium Support Services, Consultant Services, or other services or remove any data or content transmitted via the SaaS Product(s) or other services without liability
(a)if there is a significant threat to the functionality, security, integrity, or availability of the SaaS Product(s), services or any content, data, or applications in the SaaS Product(s) or services;
(b)if Outforce reasonably believes that the SaaS Product(s) or services are being used in violation of the Agreement or applicable Law;
(c)if requested by a law enforcement or government agency or otherwise to comply with applicable Law; or
(d)as otherwise specified in the Agreement. Information on Outforce ’s systems maybe unavailable to Customer during a suspension. Outforce will use commercially reasonable efforts to give Customer notice of a suspension unless Outforce determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Outforce or its customers. Outforce will use commercially reasonable efforts to lift the suspension promptly after Outforce determines that the issue causing the suspension has been resolved. Any suspension under this Section shall not excuse Customer from Customer’s obligation to make payments under the Agreement unless the events giving rise to the suspension were not substantiated, in which case Customer is not obligated to pay based on the time period the services were suspended on a pro rata basis.
10.5. Effect of Termination. Upon termination or expiration of theAgreement, Customer shall no longer Use the SaaS Product(s) and Customer’s rights to the affected Licensed Product(s), if any, Outforce Documentation, Outforce’s Confidential Information and any other Outforce materials (collectively, the“Outforce Materials”) will cease. Customer shall immediately stop using such Outforce Materials and shall return such Outforce Materials to Outforce, or destroy all copies thereof (except for the copies retained for archival purposes).
10.6. Other Remedies. Termination of the Agreement will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under the Agreement.
11. CUSTOMER OBLIGATIONS
11.1. Compliance. Customer shall comply with all applicable Laws in connection with (a)Customer’s use of the SaaS Product(s) or Licensed Product(s), and
(b)Customer Data. Customer shall ensure that each web site for which the SaaS Product(s) or Licensed Product(s) is engaged contains or is linked to a privacy policy that governs its data collection and use practices. Customer shall not provide to Outforce any technical data as that term is defined in theInternational Traffic in Arms Regulations at 22 CFR 120.10.
11.2. Secure Access. Customer shall keep the login names and the passwords required for the use of the SaaS Product(s) confidential, to keep it in a safe place, and to protect it against unauthorized access by third parties with appropriate precautions, and to instruct its Authorized Users todo the same.
11.3. Customer Data. Before entering Customer Data, theCustomer shall identify and remove all Malware. In addition, Customer is responsible for the entry, integrity, and the maintenance of Customer Data entered into the SaaS Product(s) or used in connection with the LicensedProduct(s). Customer shall ensure that all personal information is only entered and stored in the SaaS Product(s) data fields that are designed for such information.
12. MISCELLANEOUS
12.1. Assignment. Neither party may assign the Agreement or otherwise transfer any license created hereunder without the prior written consent of the non-assigning party. Any purported assignment of the Agreement, or any license or rights in violation of this Section
12.1 will be deemed void.Notwithstanding the foregoing, either party may assign the Agreement in the event of a merger, reorganization, or the sale of majority of the assets or equity interests in the assigning party. A change of control shall not be deemed an assignment hereunder.
12.2. Subcontractors. Outforce will have the right to use third parties, including Outforce’s Affiliates (“Subcontractors”) in performance of its obligations and services.
12.3. Survival. The provisions set forth in Articles and Sections 3, 5, 6, 7.4, 9, 10.5 and 12 of these GTC will survive termination or expiration of the Agreement.
12.4. Notices. All notices required under the Agreement shall be given in writing and will be deemed effective upon delivery to the party to whom addressed at the address specified on the Order or to such other address as the parties may designate in writing.
12.5. Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligations hereunder (other than for the payment of amounts due) if such delay or failure arises from any cause or causes beyond the reasonable control of the affected party, including acts of God, flood, fire, loss of electricity or other utilities, epidemic, pandemic, act of a public enemy or terrorist, act of any military, civil, regulatory or governmental authority, change in law or regulation, labor problem or unavailability of supplies and any other cause, whether similar or dissimilar to any of the foregoing that could not have been prevented by such party with reasonable care.
12.6. Amendments. Except as provided in Section 2.8(Modifications), the parties agree that the Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.
12.7. Non-Solicitation. During the term of this Agreement and for a period of six (6) months thereafter, Customer shall not hire, solicit, nor attempt to solicit, the services of any employee of Outforce providing services to Customer under this Agreement without the prior written consent of Outforce. The foregoing limitation shall not apply to a hiring pursuant to general solicitations for employment.
12.8. Headings. Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation here of.
12.9. No Waiver. No failure or delay in enforcing anyright or exercising any remedy will be deemed a waiver of any right or remedy.
12.10. Severability and Reformation. Each provision of the Agreement is a separately enforceable provision. If any provision of the Agreement is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for the Agreement to remain in effect in accordance with its terms as modified by such reformation.
12.11. Customer Purchase Orders. Any and all terms contrary to or expanding upon the terms and conditions contained in the Agreement, including terms set forth in a Customer’s purchase order, will be void and of no effect.
12.12. Independent Contractor. Outforce is an independent contractor and nothing in the Agreement will be deemed to make Outforce an agent, employee, partner, or joint venturer of Customer.
12.13. No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing in the Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of the Agreement.
12.14. Governing Law; Venue; Language.The laws of the Province of Ontario,Canada govern the interpretation of the Agreement, regardless of conflict of laws principles. The United Nations Convention on Contracts for theInternational Sale of Goods (1980) and the Uniform Computer InformationTransactions Act (UCITA) are hereby excluded in their entirety from application to the Agreement. The parties agree that the federal and provincial courts located in Toronto, Ontario, Canada will have exclusive jurisdiction for any dispute arising under, out of, or relating to the Agreement. All communications and notices made or given pursuant to this Agreement must be in the English language. If a translation of the English language version of this Agreement is provided, the English language version of the Agreement will control if there is any conflict.
12.15. Electronic Signatures. Electronic signatures that comply with applicable Law are deemed original signatures.
12.16. Interpretation. References to “include” and“including” means including without limiting the generality of any description preceding such term and “or” or “and/or” is not exclusive.
12.17. Entire Agreement. The Agreement constitutes the entire agreement between the parties regarding the subject matter thereof.
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