WHEREAS, the Vendor is in the business of providing cloud-based software subscription services as more fully described at www.cognota.com (the “Subscription Service” and collectively the “Subscription Services); and
WHEREAS, the Parties desire that the Vendor make the Subscription Services available to the Customer as described on an order form (hereinafter referred to as an “Order”), which together with the Terms form the “Agreement”. The Customer and the Vendor may be referred to individually as “Party” or collectively as “Parties.”
THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
The Terms which apply to and govern the Vendor’s provision of the Subscription Services to any person, firm, corporation (the “Customer”), and any agreement the Customer enters for the use of the Subscription Services shall be deemed to be subject to these Terms, which are incorporated by reference into any such agreement. Wherever used in these Terms, the Customer includes Customer’s subsidiaries and affiliates, and each party represents and warrants that it has the legal power and authority to enter and agree to these Terms. The Vendor agrees that any subsidiaries and/or affiliates of Customer (the “Customer Affiliate”), domestic of foreign, shall have the right, but not the obligation, to receive the Subscription Services under this Agreement, either directly or indirectly though the Customer or by submitting an Order referencing this Agreement, which provisions shall be incorporated into and govern each transaction unless specifically superseded. No joint venture, partnership, employment, or agency relationship exists between the Customer and the Vendor as a result of the Terms or use of the Subscription Services.
Except for any specific payment provisions included in these Terms, all Terms which apply to the Customer also apply to a Potential Customer (the “Potential Customer”) who registers for a free trial of the Subscription Services (the “Free Trial”). The Potential Customer may only maintain one (1) Free Trial Account which will made available to the Potential Customer, and the Potential Customer may use the Free Trial only for the time period which the Vendor, from time to time, makes applicable to Free Trials (the “Free Trial Period”). The Vendor reserves the right to suspend or terminate Free Trials as an offering, without notice and at any time in the Vendor’s sole discretion, unless the Potential Customer has exercised its option to purchase the Subscription Services. Note that if the Potential Customer chooses to terminate a Free Trial, or if the Potential Customer refuses to exercise its option to purchase the Subscription Services upon the expiration of the Free Trial Period, the Potential Customer may permanently lose content, features or capacity of the Potential Customer’s Subscription Service account, and the Vendor has no responsibility for any such loss.
Use of the Subscription Services
During the applicable Subscription Term, the Vendor will host, maintain, update, and operate the Subscription Services with no less than the functionality and specifications as set out on the Website relating to the applicable Subscription Services as of the Subscription Service Start Date. The Vendor grants the Customer a non-exclusive, worldwide, non-transferrable, license to access and use the Subscription Services in accordance with the Terms hereunder. The Customer agrees that it will only use the Subscription Services for the purposes permitted by (a) the Terms and (b) any applicable law and regulation in the relevant jurisdictions (including any laws regarding the export of data or software to and from any relevant countries).
The Customer may have users who are each authorized to have a login account associated with the Subscription Service (an “Individual Account” or an “Authorized User”). As such, an Authorized User is not permitted to share its username and/or password with any other person, firm, or corporation who is not authorized to use the Subscription Service, and agrees to not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, publicly display, time share, or otherwise commercially exploit or make the Subscription Service available to any third party. Furthermore, the Customer understands that it may not gain access to or attempt to gain access to the Subscription Services by any means other than through the interface that is provided by the Vendor and agrees not to willfully and knowingly engage in any action or activity which interferes with or disrupts the Subscription Services (or its related systems or networks) including, without limitation, using web crawlers or scripts or security testing tools or by otherwise sending, storing, publishing, posting, uploading, or transmitting any viruses, Trojan horses, worms, time bombs, corrupted files, or other computer programming routines that are intended to probe, scan, attempt to penetrate, damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, information, or property of the Vendor when using the Subscription Services.
The Order may provide the Customer with the opportunity, in connection with the Subscription Services, to also purchase coaching and certification services (the “LearnOps Academy & Coach Program“) that is provided by coaches that the Vendor has established partnerships with (individually a “Coach” and collectively “Coaches”). By purchasing or opting to use the LearnOps Academy & Coach Program, the Customer and its Authorized User acknowledge and agree that they are solely responsible for their own decisions and actions, and that they have made an independent judgment about the usefulness and suitability of any information received during the LearnOps Academy & Coach Program from both in terms of content and information received by Coaches and/or the Vendor. The Customer and its Authorized User agree to release and hold harmless the Vendor and the Coaches, and each of their respective officers, directors, shareholders, employees, and agents (collectively, the “Releasees”) from and against any and all liabilities whatsoever for losses or damages of any kind and any claims based on personality, defamation or other claims arising from the LearnOps Academy & Coach Program.
The look, feel, and function of the Subscription Service is copyrighted. The Customer and/or the Potential Customer may not duplicate, copy, or reuse any portion of the Subscription Service and will not (and will not permit or direct any third party under its control to), directly or indirectly for whatever purpose, (a) analyze, reverse engineer, decompile, disassemble or otherwise attempt to discover any part or parts of the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any software, documentation or data related to the Subscription Services (the “Software”) for any purpose(s), (b) access the Subscription Services to monitor the Subscription Services’ availability, or functionality, or for any other benchmarking or competitive purpose(s), and/or (c) modify, translate, or create derivative works based on the Subscription Services or the Software (except to the extent expressly permitted or authorized in writing by the Vendor or applicable laws, rules and/or regulations).
The Vendor, its licensors, and its service providers own and retain all right, title, and interest in and to the Subscription Services and the Software and all rights to the related intellectual property including without limitation, suggestions, recommendations, feedback, improvements, modifications, enhancements, and requests that are provided by the Customer and its Authorized Users wherever in the world those rights exist (excluding any Customer Data contained therein). In addition, the Vendor reserves all rights not expressly granted to the Customer relating to the Subscription Services under this Agreement.
“Customer Data” means all information, including, but not necessarily limited to, any of the Customer personal information, data, content, reports, or other materials processed by or input into or transmitted by or through, or prepared through the use of, or processed using the Subscription Services or provided by the Customer to the Vendor. As between the Vendor and the Customer, the Customer exclusively owns all right, title, and interest in and to all the Customer Data. The Customer Data is deemed Confidential Information under this Agreement.
Pursuant to the restrictions set forth in this Agreement, the Vendor has the right to collect statistical information from the use of the Subscription Services by Customer and make use of such anonymous aggregate information for the sole purposes of improving the Software and Subscription Service and related business activities, provided that such information does not incorporate any Customer Data or Customer Confidential Information, and such information has been combined with data of other Vendor customers and stripped of any personal identifiers such that the information cannot be used to identify Customer or their Authorized User (the “Usage Data”). The Vendor retains all intellectual property rights in such aggregate Usage Data.
Confidential information means all confidential information of a Party (the “Disclosing Party”) disclosed to the other Party (the “Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including Customer Data, the Subscription Services, Authorized User access credentials, non-public information regarding features or functionality, and performance or documentation of the Subscription Services, the terms and conditions of this Agreement, pricing and other terms set forth in all Orders hereunder, as well as client information, marketing plans, budgets, financial information, technology, technical information, methods, processes, techniques, designs, internal policies, auditor reports, test results, computer programs, penetration test results, and other business information disclosed by the Disclosing Party (hereinafter collectively referred to as “Confidential Information” or “Proprietary Information”).
Recipient shall: (i) use the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information, but in no event less than reasonable care; and (ii) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
The restrictions and confidentiality obligations set forth in this Agreement do not apply to information which: (i) is, or hereafter becomes, generally available to the public other than as a result of breach by the Recipient or any of its representatives; (ii) was obtained by the Recipient without a breach or violation of any express or implied confidentiality duty or obligation owed to the Disclosing Party; (iii) becomes available to the Recipient on a non-confidential basis from a third party, provided that the third party providing such information is not prohibited from disclosing such information by a contractual, legal, or fiduciary obligation of confidentiality; (iv) is independently developed by the Recipient without the use or benefit of Confidential Information provided to the Recipient pursuant to this Agreement and such independent development can be shown by documentary evidence; and (v) the Recipient becomes compelled to disclose by way of statute, government regulation, or judicial order, provided, however, that the Recipient shall to the extent practicable and permitted by such lawful order, provide the Disclosing Party with prompt notice of any such obligation to disclose so that the Disclosing Party may seek to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information prior to being disclosed, at the expense of the Disclosing Party. In any event, Recipient shall furnish only that portion of the Confidential Information which is legally required to be disclosed.
The Vendor will maintain a data privacy and security program that aligns to industry standards and practices as set forth at https://trust.cognota.com (the “Trust Center”), including technical, administrative, and organizational safeguards that are designed to (a) ensure the security, integrity, and confidentiality of Customer Data, (b) protect against any anticipated threats or hazards to the security or integrity of Customer Data, (c) protect against unauthorized disclosure, access to, or use of Customer Data, (d) ensure the proper disposal of Customer Data, and (e) ensure that access to Customer Data is restricted to employees, agents, and contractors of the Vendor who have a business need to access the Customer Data, if any, and will comply with all of the foregoing.
If the Vendor discovers or is notified of any actual breach of security of any Customer Data (each a “Security Incident”), the Vendor will in the most expedient time possible and without unreasonable delay under the circumstances (within twenty-four (24) hours of becoming aware of the Security Incident), notify the Customer of the Security Incident. The Vendor shall promptly and at its sole cost (i) investigate, and take appropriate actions to remediate the effects of, and mitigate the risks associated with, the Security Incident, (ii) provide the Customer with regular updates on the progress and outcome of its investigation, remediation, mitigation, and resolution of the Security Incident including any risk to the Customer or Customer Data (the “Security Notifications” or “Incident Notifications”), (iii) take all commercially reasonable actions to ensure the circumstances that gave rise to the Security Incident are resolved in the most expedient time possible under the circumstances, (iv) provide the Customer with a written report once the Security Incident has been remedied, including steps taken to prevent a recurrence of the Security Incident, and (v) grant the Customer with the right to determine whether and when and how to provide notice of a Security Incident to any regulators, law enforcement agencies, or other parties relevant to or impacted by the Security Incident, including affected parties if any, whose personal information was or may have been impacted (the “Data Subjects”). Without limiting the foregoing, the Vendor has the right with notice to the Customer, to disclose the occurrence of the Security Incident to other affected parties, provided that the Vendor shall not disclose the name of the Customer or any Data Subjects in such disclosure. The Vendor shall also promptly notify the Customer when the Vendor becomes the subject of any government, regulatory or other investigation or proceeding relating to its data privacy, security or handling practices, and the Vendor shall train and take additional reasonable steps to ensure that persons employed or engaged by it with access to the Customer Data are aware of and comply with this Agreement and any applicable laws.
In using the Subscription Services, the Customer agrees that it will not engage in any unauthorized use of any intellectual property (including without limitation any trade name, trademark, logo) of any other firm or corporation or use any such intellectual property in a way which does or may cause confusion as to the identity of the owner or authorized user of such intellectual property and which does not expressly provide any proper and required copyright and other attribution. The Vendor does not knowingly permit copyright infringing activities and infringement of intellectual property rights on the Website, or in the use of its Subscription Services or Software and the Vendor will remove all content and third-party submissions if properly notified that such content or third-party submission infringes on another’s intellectual property rights without any liability to the Customer for so doing.
The Customers shall provide for their own access to the Internet and/or arrange for secure Internet access for its Authorized Users. THE CUSTOMER ACKNOWLEDGES IT IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE CONTROL, OPERATION, AND SECURITY OF ANY INTERNET TRANSACTIONS OR COMMUNICATIONS INITIATED USING THE SUBSCRIPTION SERVICES. THE CUSTOMER FURTHER ACKNOWLEDGES THAT THE VENDOR HAS EXPLICITLY INFORMED THE CUSTOMER THAT THE INTERNET IS NOT A SECURE MEDIUM AND MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND INADVERTENT OR DELIBERATE SECURITY BREACHES.
The Software which the Customer uses may automatically update from time-to-time. These updates are designed to fix bugs, improve, enhance, and further develop the Subscription Services. The Vendor shall also provide the Subscription Services using reasonable efforts consistent with industry standards, and in a manner which minimizes errors and interruptions with at least 99.5% availability excluding (a) time for scheduled maintenance or for unscheduled emergency maintenance, either by the Vendor or by third-party providers, or (b) because of other causes beyond the Vendor’s reasonable control. The Vendor shall use all commercially reasonable efforts to provide advance notice in writing or by e-mail to the Customer of any scheduled service disruption it experiences. In addition to the foregoing, the Subscription Services will conform in all respects with the service levels as set forth at https://bit.ly/3xNMFRb (the “Subscription Service Levels”).
The service fees for the Subscription Services (the “Fees”) are billed to and payable by the Customer in the amounts set out in the applicable Order. The Order sets out the initial subscription term (the “Initial Subscription Term”) for the Subscription Services. Subject to earlier termination as provided in these Terms, the Initial Subscription Term shall automatically be renewed for successive additional periods of one (1) year (each a “Renewal Term”), unless the Customer requests termination at least thirty (30) days prior to the end of the then-current term by written notice actually given to the Vendor. On each subsequent Renewal Term, the Fees will be subject to an automatic increase of five (5%) percent, or the maximum permitted by The Consumer Price Index, whichever is higher. The Initial Subscription Term and any Renewal Terms are the “Subscription Term”.
All Fees are exclusive of any applicable taxes whether national, federal, state, provincial, territorial, withholding and/or VAT taxes and applicable customs duties or tariffs (collectively the “Taxes”). The Customer is responsible for the payment of all Taxes applicable to the Subscription Services. If the Vendor has the legal obligation to pay or collect any Taxes for which the Customer is responsible under the Terms, the Vendor will invoice the Customer for the applicable amount which the Customer hereby agrees to pay or reimburse to the Vendor forthwith unless the Customer provides the Vendor with a valid tax exemption certificate issued by the applicable and competent taxing authority.
Unless otherwise provided in the Order, the Vendor shall bill the Customer through an invoice, in which case, full payment for invoices issued in any given month must be received by the Vendor as set out in the applicable Order. Unpaid amounts are subject to a finance charge of one (1%) percent per month on any outstanding balance, or the maximum permitted by law, whichever is higher, plus all expenses of collection and may result in immediate termination by the Vendor of the Subscription Services. All transactions between the Vendor and the Customer are final and all payments by the Customer to the Vendor are final. Except as otherwise agreed to in writing, the Vendor does not issue refunds for transactions that have been paid for by the Customer.
The Customer may terminate the Agreement upon written notice, if (a) the Vendor materially breaches or fails to perform its obligations under the Agreement and has not cured the breach in accordance with the Agreement effective thirty (30) days after the Vendor’s receipt of written notice from the Customer, (b) the provision of the Subscription Services to the Customer is, or becomes, unlawful and the Vendor no longer can offer the Subscription Service to the Customer, or (c) either party becomes insolvent or ceases to carry on business. In the case of any such termination, the Customer will pay the Vendor immediately and in full for the Subscriptions Services up to and including the last day on which the Subscription Services are provided to the Customer, and the Vendor shall repay all Fees prepaid by the Customer for periods after the date of termination, such amount to be calculated as [(total Fees paid)/number of day in period for which such Fees were paid) multiplied by (remaining days in the period for which such Fees were paid)] (the “Prorated Amount”) and all other prepaid Fees covering the remainder of the Term.
Upon termination or expiration of the Customer’s right to Subscription Services, if the Customer does not enter into a longer-term agreement with the Vendor, the Vendor will provide the Customer with the ability to export the Customer Data for thirty (30) days from the time of such termination, expiration or otherwise, at no additional cost to the Customer (the “Data Retrieval Period”), after which the Vendor shall, unless otherwise legally prohibited, destroy all the Customer Data under its administrative control.
Notwithstanding anything to the contrary, the Vendor will defend the Customer, its affiliates and their respective officers, directors, employees and contractors (collectively, the “Customer Indemnified Parties”) against any claim, demand, suit or proceeding made or brought against the Customer Indemnified Parties (a “Claim”) and will indemnify and hold the Customer Indemnified Parties harmless from any damages, liabilities, losses, costs and expenses (reasonable court costs and legal fees and related costs) incurred by a the Customer Indemnified Party as a result of or in connection with a Claim, to the extent the Claim arises from (a) any use of the Customer Data in a manner not expressly permitted under this Agreement, (b) a Security Incident, (c) the Vendor or any of its service providers’ gross negligence or willful misconduct, or (d) breach of this Agreement. If the Vendor receives information about an infringement or misappropriation claim related to the Subscription Services, the Vendor may in its discretion promptly and at no cost to the Customer (i) modify the Subscription Services so that they are no longer claimed to infringe or misappropriate, without breaching the Vendor’s warranties or degrading the Subscription Services in any material respect, (ii) obtain a license for the Customer’s continued use of the Subscription Services in accordance with the Terms, or if neither (i) or (ii) is available, (iii) terminate the Terms and refund the Customer the Prorated Amount and all other prepaid fees covering the remainder of the Term.
During the term of this Agreement, the Vendor shall maintain at a minimum (i) commercial general liability insurance on an occurrence basis for bodily injury, death, property damage and personal injury, with coverage limits of not less than one million ($1,000,000) dollars per occurrence; (ii) umbrella liability insurance on an occurrence form, for limits of not less than one million ($1,000,000) dollars per occurrence and in the aggregate; and (iii) technology errors & omissions and cyber-risk liability on an occurrence or claims-made form, for limits of not less than one million ($1,000,000) dollars annual aggregate covering liabilities for financial loss resulting or arising from acts, errors or omissions in the rendering of the Subscription Services under this Agreement, or from data damage or data destruction or data corruption, including without limitation, unauthorized access, unauthorized use, virus transmission, denial of service, and violation of privacy in connection with the Subscription Services provided as set forth at https://bit.ly/39MlEpu (the “Certificate of Insure” or “COI”).
The Customer will indemnify, defend and hold harmless the Vendor, its affiliates and their respective officers, directors, employees and contractors (collectively, the “Vendor Personnel”) from and against any cost, loss or damage (including reasonable court costs and legal fees and related costs) incurred by the Vendor to the extent arising out of a third-party claim that the Customer Data in the form provided by the Customer and when used by the Vendor as permitted under the Agreement infringes any intellectual property right of such third-party or constitutes misuse or misappropriation of a trade secret of such third-party.
A party seeking indemnification shall notify the indemnifying party of any actual or threatened suit, claim, demand, investigation, proceeding, cause of action, or action (collectively, “Action”) for which such party seeks indemnification under these Terms and shall give the indemnifying party authority, reasonable information, and assistance (at the indemnifying party’s expense) for the defense of such Action. The indemnifying party shall not, without the indemnified party’s prior written consent, not to be unreasonably withheld, delayed or conditioned, enter into any settlement agreement which (a) admits guilt, fraud, liability or wrongdoing of the indemnified party, (b) requires the indemnified party to commit to action or to refrain from action, or (c) provides for any damages other than money damages for which the indemnified party is indemnified. The indemnified party reserves the right to participate in the defense at its cost.
EXCEPT IN CONNECTION WITH (I) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (II) A PARTY’S BREACH OF ITS CONFIDENTIALITY, DATA SECURITY AND PRIVACY OBLIGATIONS HEREUNDER, (III) A PARTY’S BREACH OF THIS AGREEMENT, APPLICABLE LAWS, RULES OR REGULATIONS OR (IV) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER THE AGREEMENT, IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING LOST PROFITS OR REVENUES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES UNDER THE AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO VENDOR DURING THE TERM OF THE AGREEMENT.
SUBJECT TO ANY APPLICABLE LAW WHICH LIMITS THE VENDOR’S EXCLUSION OR LIMITATION OF WARRANTY OR LIABILITY FOR LOSSES, AND EXCEPT AS OTHERWISE SET FORTH HEREIN, THE CUSTOMER ACKNOWLEDGES TO AND AGREES WITH THE VENDOR THAT ITS USE OF THE SERVICE OR SERVICES IS AT ITS OWN AND SOLE RISK AND THAT VENDOR MAKES NO REPRESENTATION THAT THE SUBSCRIPTION SERVICES ARE FIT FOR THE CUSTOMER’S PURPOSES OR WILL MEET ITS REQUIREMENTS. EXCEPT AS SET OUT IN THE AGREEMENT, THE VENDOR AND ITS LICENSORS MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND AND EXPRESSLY DISCLAIM ALL WARRANTIES, GUARANTEES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SUBSCRIPTION SERVICES ARE OR WILL BE ERROR-FREE. THE CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE VENDOR TO ANY THIRD PARTY.
Neither Party may assign any of its rights nor delegate any of its obligations (excepting the Vendors subcontractors) under this Agreement, except with the prior written consent of the other Party, provided, however, that either Party may, without the written consent of the other Party assign this Agreement and its rights and delegate its obligations to an Affiliate or in connection with the transfer or sale of all or substantially all of its business or in the event of its merger, consolidation, change in control, or similar transaction. Any purported assignment of this Agreement and rights herein or delegation of obligations in violation of this section will be null and void and of no effect.
Both Parties shall comply with all laws and regulations applicable to each Party’s respective conduct under this Agreement, including any applicable import and export restrictions. The Vendor is responsible for classification of the Subscription Services under any relevant export or import laws and shall inform the Customer of any import or export restrictions known to the Vendor that apply or may apply to the Subscription Services.
In the event that The Vendor is impeded or prevented from continuing to offer the Subscription Services as planned or intended by any event of Force Majeure (which means an event beyond the claiming party’s reasonable control, including, but not limited to, fire, flood, natural or manmade epidemic or crisis, earthquake, explosion, labor dispute or strike, act of God or public enemy, satellite or equipment failure, riot or civil disturbance, terrorist threat or activity, war (declared or undeclared), any applicable national, federal, state, provincial, territorial or local government law, order or regulation, public health crisis, the order of any court or jurisdiction, or by any other cause not reasonably within the Vendor’s control, then the Vendor shall have the right to modify or suspend or terminate its offer of and provision of the affected Subscription Services, and the Vendor shall not be liable for any delay or failure to perform any of its obligations under these Terms if such delay or failure is due to causes beyond its control including, without limitation, the incidents and causes due to an event of Force Majeure.
All sections of the Terms which create or impose rights to payment, confidentiality obligations, indemnification obligation, warranty disclaimers, and limitations of liability and any other rights or obligations, which by their nature are intended to survive, shall survive the termination, cancellation, or expiration of this Agreement. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision. If any provision is determined to be invalid or otherwise unenforceable or illegal, this Agreement shall otherwise remain in effect and shall be construed in accordance with its terms as if the invalid or illegal provision were not contained herein. Headings and captions used in this Agreement are solely for ease of reference and shall not be deemed or considered to affect in any manner the meaning or intent of this Agreement or any provision thereof.
All issues and questions concerning the construction, validity, interpretation, and enforceability of this Agreement or the rights and obligations as between the Customer and the Vendor in connection with the provision and use of the Subscription Services shall be governed by and construed and interpreted in accordance with the federal laws of Canada, and in accordance with the internal laws of the Province of Ontario, Canada, including the procedural provisions of those Ontario laws, without giving effect to any choice of law or conflict of law rules or provisions that would cause or bring about the application of any other jurisdiction’s laws. The Vendor and the Customer and all other parties hereby attorn to the jurisdiction of the courts of the Province of Ontario, sitting in the City of Toronto, Ontario, in respect of the determination of any matter or dispute arising under or in respect of the Terms and the Order and agree that any such determination shall be brought solely and exclusively before such courts in the Province of Ontario.
Any notice given under or pursuant to the Terms must be in writing, addressed to the party’s address set out in the Order, and will be deemed to have been duly given when actually received by the party to whom the notice is being given if personally delivered; when receipt by the party to whom the notice is being given is electronically confirmed as having been received, if transmitted by the party giving notice to the facsimile or e-mail address last known to the party giving the notice; if sent by the party giving the notice, for next day delivery by recognized overnight delivery service, on that next day; and upon actual receipt by the party to whom the notice is being given, if sent by certified or registered mail, return receipt requested.
Last Updated: September 25, 2023